United States District Court, D. Kansas
MICHAEL A. NEFF, Plaintiff,
WINFIELD CORRECTIONAL FACILITY, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
Michael A. Neff is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this action should not be dismissed due to the
deficiencies in Plaintiff's Complaint that are discussed
herein. Plaintiff is also given an opportunity to file a
proper amended complaint to cure the deficiencies.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the El
Dorado Correctional Facility-Central in El Dorado, Kansas
(“EDCF”). The Court granted Plaintiff leave to
proceed in forma pauperis.
alleges in his Complaint that Defendants have participated in
or allowed “a campaign of harassment, spiteful actions,
ill-will and malice, and contributed to placing Plaintiff in
a number of dangerous situations, including, but not limited
to, religious discrimination, libel, due process violations,
among other civil rights actions.” (Doc. 1, at 3.)
Plaintiff names as Defendants: Winfield Correctional Facility
(“WCF”); EDCF; Kansas Department of Corrections
(“KDOC”); Joe Norwood, Secretary of KDOC; Douglas
Burris, Designee to Secretary, KDOC; Emmalee Conover, Warden
at WCF; Paul Snyder, Warden at EDCF; (fnu) Snyder, Assistant
Warden at WCF; (fnu) Donley, Assistant Warden, EDCF; (fnu)
(lnu) (1), EAI Supervisor, KDOC; Tyler Clark, EAI
Investigator, WCF; (fnu) Sissell, EAI Investigator, EDCF; P.
Morrison, Classification Officer, WCF; M. Bos, Classification
Officer, EDCF; Russell Cole, Unit Team Supervisor, WCF; (fnu)
Randolph, Unit Team Supervisor, EDCF; (fnu) Wheeler,
Correctional Supervisor, WCF; (fnu) Sanchez, Corrections
Officer, EDCF; John Does, Corrections Officers, EDCF; (fnu)
Fugua, Corrections Officer, WCF; (fnu) Vaden, Corrections
Officer, WCF; (fnu) Gobel, Corrections Officer, WCF; and
(fnu) Lafue, Corrections Officer, WCF. Plaintiff's
request for relief includes: removal of Plaintiff's
“STG” status; re-instate Plaintiff's minimum
custody classification; re-instate all good time credit
Plaintiff has lost due to multiple Disciplinary Reports filed
by Defendants; and punitive damages totaling $1, 000, 000.
alleges that Defendants Vaden, Lafue, Gobel, Fuqua, and
Wheeler violated his First and Fourth Amendment rights and
RLUIPA by “constantly harassing and confiscating
religious items belonging to Plaintiff.” (Doc. 1, at
8-11.) Plaintiff alleges that his Eighth and Fourteenth
Amendment rights were violated: by Defendant Tyler Clark for
unjustly activating security threat group (“STG”)
status against Plaintiff; by Defendant Sissel for unjustly
maintaining STG status against Plaintiff; by Defendants
Sanchez and John Does for restraining and pepper-spraying
Plaintiff while he was being stabbed by another inmate, thus
rendering Plaintiff defenseless; by Defendant Bos for
classifying Plaintiff as a maximum custody inmate, thereby
putting him in a dangerous and hostile environment; by
Defendant Morrison for maintaining Plaintiff as a maximum
custody inmate, thereby putting him in a dangerous and
hostile environment; by Defendant Conover for allowing
Plaintiff's transfer from a minimum to a maximum custody
facility, thereby putting him in a dangerous and hostile
environment; by Defendant Paul Snyder for allowing and
maintaining the classification and transfer of Plaintiff to a
maximum custody facility, thereby placing and keeping him in
a dangerous and hostile environment; and by Defendant Donley
for maintaining Plaintiff's maximum custody level,
thereby placing him in a dangerous and hostile environment.
alleges that Defendants WCF, EDCF, KDOC, and the Secretary
and Secretary Designee of KDOC, violated RLUIPA by
“allowing named defendants to act in such a way as to
constitute all of the aforementioned actions by the
employee's underneath them thru KDOC.” (Doc. 1, at
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48
(1988)(citations omitted); Northington v. Jackson,
973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally
construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). In addition, the court accepts all well-pleaded
allegations in the complaint as true. Anderson v.
Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other
hand, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,
” dismissal is appropriate. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 558 (2007).
se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations
omitted). The complaint's “factual allegations must
be enough to raise a right to relief above the speculative
level” and “to state a claim to relief that is
plausible on its face.” Id. at 555, 570.
Tenth Circuit Court of Appeals has explained “that, to
state a claim in federal court, a complaint must explain what
each defendant did to [the pro se plaintiff]; when the
defendant did it; how the defendant's action harmed [the
plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). The court “will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (citation omitted).
Tenth Circuit has pointed out that the Supreme Court's
decisions in Twombly and Erickson gave rise
to a new standard of review for § 1915(e)(2)(B)(ii)
dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007)(citations omitted); see also Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As
a result, courts “look to the specific allegations in
the complaint to determine whether they plausibly support a
legal claim for relief.” Kay, 500 F.3d at 1218
(citation omitted). Under this new standard, “a
plaintiff must ‘nudge his claims across the line from
conceivable to plausible.'” Smith, 561
F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true, ”
but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, ” then the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Twombly, 127 S.Ct. at 1974).