United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
matter is a Bivens-type civil rights action.
Plaintiff, a federal prisoner, proceeds pro se and in forma
of the Complaint
brings this action against the United States, the United
States Attorney, an assistant United States Attorney, the
federal public defender, an assistant federal public
defender, and a United States District Judge. He alleges
wrongful detention and seeks damages, immediate release, and
the dismissal of the criminal charge against him.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
motion to appoint counsel
moves for the appointment of counsel. There is no
constitutional right to the appointment of counsel in a civil
matter. Carper v. Deland, 54 F.3d 613, 616
(10th Cir. 1995); Durre v. Dempsey, 869
F.2d 543, 547 (10th Cir. 1989). Rather, the
decision whether to appoint counsel in a civil action lies in
the discretion of the district court. Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991).
The party seeking the appointment of counsel has the burden
to convince the court that the claims presented have
sufficient merit to warrant the appointment of counsel.
Steffey v. Orman, 461 F.3d 1218, 1223
(10th Cir. 2016)(citing Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.
2004)). It is not enough “that having counsel appointed
would have assisted [the movant] in presenting his strongest
possible case, [as] the same could be said in any
case.” Steffey, 461 F.3d at 1223 (citing
Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995)). The Court should consider
“the merits of the prisoner's claims, the nature
and complexity of the factual and legal issues, and the
prisoner's ability to investigate the facts and present
his claims.” Rucks, 57 F.3d at 979.
Court has considered the record and declines to appoint
counsel as it appears that the plaintiff's claims are
subject to dismissal without prejudice.
claims challenge the validity of his conviction. Although he
commenced this matter as a civil rights action, in order to
obtain relief from his conviction, he must proceed in habeas