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Ware v. Cole

United States District Court, D. Kansas

September 27, 2019

JUSTIN MARTINEZ WARE, Plaintiff,
v.
BRIAN COLE, et al., Defendants.

          ORDER

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

         Plaintiff has filed a pro se complaint pursuant to 42 U.S.C. § 1983. He is a prisoner at the El Dorado Correctional Facility and was previously housed by the Shawnee County Department of Corrections. This case is before the Court to screen plaintiff’s complaint pursuant to 28 U.S.C. § 1915A.

         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), cert. denied, 507 U.S. 940 (1993). 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. Nor is the court obliged to accept allegations which amount to legal conclusions as opposed to facts. Iqbal, 556 U.S. at 678. “Thus, mere ‘labels and conclusions' and ‘a formulaic recitation of the elements of a cause of action’ will not suffice” to state a claim. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 555).

         III. The complaint

         Plaintiff alleges that in April 2019 while he was incarcerated by the Shawnee County Department of Corrections, he was involved in a physical altercation with two other parties. Seven to ten correctional officers arrived and broke up the fight. Plaintiff and the other persons fighting were handcuffed and placed on the floor face down. Plaintiff alleges that the officers were escorting one of the individuals whose name is McClaughlen[1] out of the module and stopped for some reason when he was close to plaintiff who was still on the floor. Plaintiff claims that McClaughlen kicked plaintiff in the head with extreme force causing pain, lingering headaches, and permanent damage. Plaintiff blames this on defendants’ “carelessness.” Doc. No. 1, p. 4.

         Plaintiff has named Brian Cole, the Director of the Shawnee County Corrections Department, as a defendant. Plaintiff has also named two correctional officers as defendants: Lt. Loneberg and Officer Rhoads. Plaintiff does not describe any specific action or failure to act by defendant Cole. He states that defendant Rhoads handcuffed plaintiff and that defendant Loneberg handcuffed McClaughen. Plaintiff does not identify the officers who escorted McClaughen out and then stopped so near plaintiff that McClaughen had the opportunity to kick plaintiff.

         IV. Section 1983 standards

         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)(internal quotation marks omitted). To bring a claim under § 1983, a plaintiff must allege a causal connection, i.e., that the defendants “set in motion a series of events that caused the constitutional violation.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 779 (10th Cir. 2013). It is not enough that a defendant acted in a supervisory capacity when another defendant violated a plaintiff’s constitutional rights. Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016). Plaintiff’s allegations must plausibly demonstrate that there was an affirmative link between the supervisor and the constitutional violation. Id. This requires allegations showing: 1) personal involvement; 2) causation; and 3) state of mind (deliberate indifference). Id. It is well established that negligence is not a basis for liability under ยง 1983; liability must be predicated upon a deliberate ...


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