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Butler v. Atchison Police Department

United States District Court, D. Kansas

September 24, 2019



          Sam A. Crow, U.S. District Senior Judge.

         This case is before the court for the purpose of screening plaintiff’s pro se complaint and deciding plaintiff’s motion for leave to proceed in forma pauperis. The court proceeds pursuant to 28 U.S.C. § 1915A. Plaintiff brings his complaint under 42 U.S.C. § 1983.

         I. Pro se standards

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).

         II. Screening standards

         Title 28 United State Code Section 1915A requires the court to review cases filed by prisoners seeking redress from a governmental entity or employee to determine whether the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted. When deciding whether plaintiff’s complaint “fails to state a claim upon which relief may be granted, ” the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. The court accepts the plaintiff’s well-pled factual allegations as true and views them in the light most favorable to the plaintiff. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).

         The court, however, will not accept broad allegations which lack sufficient detail to give fair notice of what plaintiff’s claims are. Section 1983 plaintiffs must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.” Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008).

         III. The complaint

         Plaintiff is incarcerated in the Atchison County Jail. From exhibits to the complaint, it appears that plaintiff began his incarceration on May 11, 2019. Doc. No. 1-1, p. 5. His complaint names the Atchison Police Department, the City of Atchison, Kansas and police officer Mason as defendants. Plaintiff alleges that he reported a crime to the police (Officer Mason), but no action has been taken. He further alleges that his cell phone has been seized by the Atchison Police Department without a warrant. Exhibits to the complaint indicate that a police department detective received an iPhone belonging to plaintiff from the Atchison County Jail on May 20, 2019. Doc. No. 1-1, p. 4. Plaintiff does not allege that the phone was illegally seized when plaintiff was arrested. Plaintiff also does not allege facts showing that the digital contents of the phone have been searched without a warrant.

         Plaintiff has written his allegations on a form for bringing a complaint pursuant to 42 U.S.C. § 1983. A plaintiff bringing a § 1983 claim 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.” Bruner v. Baker, 506 F.3d 1021, 1025–26 (10th Cir. 2007).

         IV. Failure to charge a crime

         There is no constitutional right to have law enforcement investigate complaints against other parties or to have a state actor report an alleged crime to a charging authority. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005)(no due process right to have someone else arrested for a crime); Webb v. Caldwell, 664 F.App'x 695, 696 (10th Cir. 2016)(no constitutional right to have action taken against a person who threatened plaintiff); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)(no constitutional interest in prosecution or nonprosecution of another); Phillips v. Kerns, 483 F.App'x 400, 402 (10th Cir. 2012)(no constitutional right to transmittal of report to district attorney and other procedures); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990)(no constitutional right to have Sheriff file charges against guards who beat ...

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