United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge
Joshua Moore 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
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 he received pages removed from
a stock exchange book in the mail that allegedly tested
positive for amphetamines and opiates. Plaintiff was issued a
disciplinary report for the introduction of contraband.
Plaintiff alleges that Lt. Kruger did not allow the evidence
used against Plaintiff to be sent to a laboratory for a
chemical analysis as requested by Plaintiff, even though S.A.
Ewing said it was allowed. Plaintiff alleges that Lt. Kruger
failed to review a phone call between Plaintiff and his
mother which would have proved his innocence. Plaintiff
alleges he is being held past his original release date due
to unfounded accusations. Plaintiff was found guilty pursuant
to his disciplinary proceedings and lost good time credit and
his early release date.
names as defendants: the Kansas Department of Corrections;
Joe Norwood, Secretary of Corrections; and (fnu) Ewing, EAI
Officer at Norton Correctional Facility. Plaintiff's
request for relief includes “credits, ”
compensatory damages 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).
claims involve his prison disciplinary proceedings.
“The Fourteenth Amendment prohibits states from
depriving citizens of liberty without due process of
law.” Wilson v. Jones, 430 F.3d 1113, 1117
(10th Cir. 2005). This guarantee applies to prison inmates,
but “[p]rison disciplinary proceedings are not part of
a criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
“The Supreme Court has established that protected
liberty interests are at issue in the prison setting only
when an inmate is subjected to (1) conditions that
‘impose[ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life' or (2) disciplinary ...