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Dulaney v. Weeks

United States District Court, D. Kansas

September 17, 2019

ALLEN DULANEY, JR., Plaintiff,
v.
ANGELA WEEKS, et al., Defendants.

          MEMORANDUM AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff Allen Dulaney, Jr., a prisoner at the Ellsworth Correctional Facility in Ellsworth, Kansas (“ECF”), brings this pro se civil rights action under 42 U.S.C § 1983. He proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Mr. Dulaney's complaint (ECF No. 1) takes issue with a GPS tracking device placed on his vehicle pursuant to warrant. Plaintiff names as defendants Angela Weeks, Lieutenant, Geary County Sheriff's Department; Dustin Murphy, Lieutenant, Junction City Police Department; Micah Haden, Detective, Grandview Plaza Police Department; Alvin Babcock, Lieutenant, Junction City Police Department; and Krista Blaisdell, Geary County District Attorney. All defendants are members of the Geary County Drug Operations Group.

         Plaintiff alleges the GPS tracking device was left on his vehicle and monitored beyond the period authorized by the Geary County District Court. He asserts the order allowed the device to be installed for a time period not to exceed 30 days after successful installation, and the return filed by Defendant Weeks states the device was installed on February 22, 2017 and used until March 24, 2017. However, Plaintiff discovered the device on his vehicle on April 8, 2017 while at a residence in Geary County. He removed the device. Then, on April 11, 2017, the Drug Operation Group obtained a second warrant to search the location where Plaintiff removed the device.

         Plaintiff further alleges the prosecutor, Defendant Blaisdel, refused to disclose any information about the tracking device, advising the state district judge in Geary County No. 2017-CR-751 that the GPS tracking device was for an “unrelated issue.” ECF No. 1, at 4. However, according to Plaintiff, the “charges before the judge arose from that same investigation.” ECF No. 1, at 3. Plaintiff was ultimately convicted in that case and is serving an approximately eight (8) year sentence.

         Plaintiff claims Defendants violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. He seeks full disclosure of all information regarding the investigation involving the GPS device, compensatory damages of $50, 000 from each defendant, and a public apology.

         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).

         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 ‘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.

         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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