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McGee v. A. Lawless

United States District Court, D. Kansas

July 9, 2019

ANTONIO ALEXANDER McGEE, Plaintiff,
v.
A. LAWLESS, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow, U.S. Senior District Judge.

         Plaintiff Antonio Alexander McGee 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.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). The Court granted Plaintiff leave to proceed in forma pauperis.

         Plaintiff alleges in his Complaint that on September 30, 2018, he was told by E. Peppiatt that he needed proof regarding his eyeglasses and when he tried to show her proof she told him to go back to his cell. Plaintiff was in the “medline” at the time and asked Peppiatt if she was denying his meds. She said “no” and told Plaintiff to either go to his cell or cuff up. When Plaintiff asked her again, she told “the CO” to cuff Plaintiff. Plaintiff alleges that they used force to cuff him and made him walk bent over, so Plaintiff “pulled away to tell him that he was hurting [him].” Peppiatt told the CO to take Plaintiff to the ground. Plaintiff alleges that he “struggled from the pain.” Plaintiff alleges that they did not lock the cuffs and the pain caused Plaintiff to keep yelling at them and trying to look at their faces for help. When Plaintiff turned to face the CO he was knocked out with an elbow strike to the face. Plaintiff woke up naked on the ground and “they” took him to a cell that had another inmate's property in it, so they took him back to the wall where the CO hit him with the elbow strike. His cuffs were never loosened until they were taken off of Plaintiff.

         As Count I, Plaintiff claims that he was “kidnapped” when he was cut out of his clothes and made to walk up and down the run twice before being placed in a room. As Count II, Plaintiff claims that he was subjected to excessive force when his hand cuffs were not locked and he was hit in the face with an elbow strike. As Count III, Plaintiff claims “malicious injury (ill will) mental oppression, ” claiming that his clothes were cut off and he was forced to walk bent-over to de-humanize him.

         Plaintiff names as Defendants: A. Lawless, CO at HCF; P. Jones, CO at HCF; E. Peppiatt, CO at HCF; W. Widener, CO at HCF; M. Wagner, CO at HCF; A. Wilson, CO at HCF; and S. Ashford, CO at HCF. Plaintiff seeks compensatory and punitive damages.

         II. Statutory Screening of Prisoner Complaints

         The 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. § 1915A(b)(1)-(2).

         “To 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).

         A pro 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.

         The 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).

         The 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).

         III. ...


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