United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge.
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
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
Hutchinson Correctional Facility in Hutchinson, Kansas
(“HCF”). The Court granted Plaintiff leave to
proceed in forma pauperis.
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.
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.
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.
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).