United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
Calvin Gregory Frenzley, Jr. brings this pro se
civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff proceeds in forma pauperis. Mr. Frenzley
is a prisoner at the El Dorado Correctional Facility in El
Dorado, Kansas. For the reasons discussed below, Plaintiff is
ordered to show cause why his complaint should not be
Nature of the Matter before the Court
complaint (ECF No. 1) alleges defendants were deliberately
indifferent to a substantial risk of serious harm to him,
thus violating his Eighth Amendment and due process rights.
While housed at the Lansing Correctional Facility on June 23,
2018, a doctor employed by Corizon placed Mr. Frenzley on
suicide watch level 3 due to his mental state and a suicide
attempt. The doctor ordered that he be watched 24-hours a day
and placed in a suicide prevention cell with no access to
anything that he could use to harm himself. Instead, the
defendants put Plaintiff in a cell with a broken light
fixture and glass on the floor. Mr. Frenzley used the glass
to try to kill himself, resulting injury. Plaintiff was
treated by medical staff and then returned to the same cell
with the broken light fixture and access to broken glass. He
remained in that cell for four (4) days. Plaintiff claims
“the illegal policies of the defendant(s) et al were
directly involved in violating [his] due process rights and
Eighth Amendment rights.” ECF No. 1, at 5.
names as defendants Sam Cline, warden of the Lansing
Correctional Facility, and Joe Norwood, Secretary of the
Kansas Department of Corrections. He requests relief in the
form of $500, 000 in compensatory damages, $250, 000 in
punitive damages, and $100, 000 exemplary 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). Additionally, with any litigant, such as Plaintiff,
who is proceeding in forma pauperis, the Court has a duty to
screen the complaint to determine its sufficiency.
See 28 U.S.C. § 1915(e)(2). 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).
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 ‘entitlement 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).
properly named as a defendant in a § 1983 action, a
person must personally participate in the alleged violation
of constitutional rights. Foote v. Spiegel, 118 F.3d
1416, 1423 (10th Cir. 1997). Supervisory status alone does
not create § 1983 liability. Duffield v.
Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008).
names two supervisory defendants, Sam Cline and Joe Norwood,
and does not allege that either was personally involved in
placing him in the cell with the broken glass. Plaintiff
attempts to overcome this deficiency by claiming the
defendants were directly involved through their