United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
Jonathan Lee McConville 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
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971). The Court granted
Plaintiff leave to proceed in forma pauperis and
assessed an initial partial filing fee. Plaintiff has filed a
motion to waive the initial fee (Doc. 9). The Court grants
the motion, and will waive the initial partial filing fee.
alleges in his Complaint that an incident occurred between
him and Defendant Willcott in which Willcott
“purposefully closed the food slot door on
[Plaintiff’s] arm and shoulder area causing [him]
unnecessary pain and suffering” in violation of the
Eighth Amendment’s prohibition of cruel and unusual
punishment. (Doc. 6, at 2.) Plaintiff names P. Willcott as
the sole defendant and seeks $10, 000 for pain and suffering
and $10, 000 in 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
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).
fails to state a claim of excessive force under the Eighth
Amendment’s Cruel and Unusual Punishments Clause.
See Estate of Booker v. Gomez, 745 F.3d 405, 419
(10th Cir. 2014) (stating that “claims of excessive
force involving convicted prisoners arise under the Eighth
Amendment”). The Eighth Amendment’s prohibition
against “cruel and unusual punishments” applies
to the treatment of inmates by prison officials. See
Whitley v. Albers, 475 U.S. 312, 319–21 (1986).
Prison officials violate inmates’ Eighth Amendment
rights when they subject them to the “unnecessary and
wanton infliction of pain.” Id. at 319.
“[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and
Unusual Punishments Clause, the core judicial inquiry is . .
. whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 6–7 (1992) (citation
omitted). “The Eighth ...