United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW, SENIOR U.S. DISTRICT JUDGE.
Joseph Edward Mixon 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 Second Amended Complaint that
are discussed herein.
Nature of the Matter before the Court
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. At the time of filing, Plaintiff was an inmate
at the Ottawa County Detention Center in Minneapolis, Kansas
(“OCDC”). Plaintiff alleges in his Second Amended
Complaint (Doc. 14) that during his confinement at the OCDC,
Officer John entered B-Cell House on February 3, 2019, to
assist another inmate, and punched Plaintiff in the chest for
no reason. Plaintiff alleges that he turned in a medical
request to Officer Sean regarding his chest injury. Plaintiff
alleges that he did not receive a reply or any medical
attention. Plaintiff alleges that he suffered severe mental
anguish due to the alleged assault. Plaintiff names Officer
John as the sole defendant and seeks compensatory and
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 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).
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 Amendment's prohibition of ‘cruel
and unusual' punishments necessarily excludes from
constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a
sort ‘repugnant to the conscience of
mankind.'” Id. at 9-10.
alleges that Defendant punched him in the chest while
assisting another inmate. Not every isolated battery or
injury to an inmate amounts to a federal constitutional
violation. See id. at 9 (stating that not
“every malevolent touch by a prison guard gives rise to
a federal cause of action.”) (citing Johnson v.
Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973) (“Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's ...