United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, proceeds pro se
and in forma pauperis.
of the Complaint
a prisoner at the Saline County Jail, brings this action
against a transport officer who took him to court in Saline
County from the Ottawa County Jail. During the transfer,
plaintiff was placed in a holding room while wearing
restraints. Another inmate in the room who was not in
restraints struck plaintiff in the face. Plaintiff alleges
that this conduct was gross negligence; he seeks monetary
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations
omitted). Following those decisions, 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 (quotation
marks and internal citations omitted). A plaintiff
“must nudge his claims across the line from conceivable
to plausible.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). In this context,
“plausible” 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 [the] claims
across the line from conceivable to plausible.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (citing
Twombly at 1974).
Court liberally construes petitioner's claim to allege a
failure to protect under the Eighth Amendment, which
guarantees a prisoner the right to be free from cruel and
unusual punishment. See Farmer v. Brennan, 511 U.S.
825, 833-34 (1994)(discussing duty to protect prisoners from
violence by other prisoners).
prison official violates the Eighth Amendment only when two
components are met: first, an objective component, showing
the prisoner plaintiff was held under conditions posing a
substantial risk of serious harm, and second, a subjective
component, showing that the official acted with obduracy and
wantonness, not inadvertence or error in good faith.
the “Eighth Amendment protects inmates from the
‘infliction of punishment' - it does not give rise
to claims sounding in negligence or medical
malpractice.” Sherman v. Klenke, 653 Fed.Appx.
580, 586 (10th Cir. 2016)(quoting Farmer v.
Brennan, 511 U.S. 825, 838 (1994)). Here,
plaintiff's allegations do not plausibly assert that the
defendant officer acted with “obduracy and
wantonness.” Rather, plaintiff presents a claim of
negligence, which is actionable in state court, rather than a