United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
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.
Nature of the Matter before the Court
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.
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
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.
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.
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. §
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).
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.
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).