United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. Senior District Judge
Jeffrey Oritz Olivarez is hereby required to show good cause,
in writing, to the Honorable Sam A. Crow, United States
District Judge, why his Complaint should not be dismissed due
to the deficiencies that are discussed herein.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Hutchinson Correctional Facility in Hutchinson, Kansas
(“HCF”). The Court granted Plaintiff leave to
proceed in forma pauperis. Plaintiff alleges that
Detective David Gordan intentionally neglected his
responsibilities when he convinced the Ford County
Attorney's Office to file false murder and rape charges
against Plaintiff. Plaintiff alleges he was in jail for six
months before his charges were dismissed on March 1, 2016.
Plaintiff alleges that Defendant Gordan was negligent.
Plaintiff names Detective Gordan and the Ford County
Attorney's Office as Defendants and seeks $500, 000 in
damages for pain and suffering.
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. §
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. § 1915A(b)(1)-
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 ‘entitlement 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).
Statute of Limitations
filed this civil rights case on July 31, 2019. Plaintiff
alleges that he was falsely arrested in October of 2015, and
the charges were dismissed on March 1, 2016. The statute of
limitations applicable to § 1983 actions is determined
from looking at the appropriate state statute of limitations
and tolling principles. See Hardin v. Straub, 490
U.S. 536, 539 (1989). “The forum state's statute of
limitations for personal injury actions governs civil rights
claims under both 42 U.S.C. § 1981 and § 1983. . .
. In Kansas, that is the two-year statute of limitations in
Kan. Stat. Ann. § 60-513(a).” Brown v. Unified
Sch. Dist. 501, Topeka Pub. Sch., 465 F.3d 1184, 1188
(10th Cir. 2006) (citations omitted). The same two-year