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Smith v. Peete

United States District Court, D. Kansas

November 13, 2019

GARY LEE SMITH, Plaintiff,
v.
KIMBERLY PEETE, Defendant.

          ORDER

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

         Plaintiff states that he was released from imprisonment on August 29, 2019 and that he resides at 4715 Brewer Place, Leavenworth, Kansas 66048. This is the address of a residential reentry facility called the Grossman Center. Plaintiff has filed a pro se complaint (Doc. No. 4) against Kimberly Peete, who plaintiff identifies as a United States Probation Officer from the Western District of Missouri. His complaint alleges claims under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has asked for leave to proceed in forma pauperis. This case is now before the court for the purpose of screening the complaint pursuant to 28 U.S.C. §§ 1915 and 1915A.

         I. Screening standards

         Sections 1915(e)(2) and 1915A authorize the court to review cases to determine whether the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted. 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). But, a pro se litigant's conclusory allegations without supporting facts “are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court “will not supply additional factual allegations to round out a [pro se] plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         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 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, is not required to accept legal conclusions alleged in the complaint as true. 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).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “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.” Id. “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. (quoting Twombly, 550 U.S. at 557).

         II. Plaintiff's allegations

         Plaintiff's complaint alleges four claims. The first claim asserts that defendant from September 5, 2019 to the present has ordered plaintiff not to use any computer or visit any library to conduct legal research or to prepare any legal documents. Plaintiff alleges that he was denied access to the law library at the Leavenworth Justice Center in Leavenworth, Kansas. Plaintiff claims that this has violated plaintiff's right of access to the courts.

         Plaintiff's second claim asserts that he is a Democratic Presidential candidate for 2020 and that defendant has denied plaintiff access to the Internet to communicate his platform in violation of plaintiff's First Amendment rights to freedom of speech. Plaintiff's third claim is also a free speech claim. He asserts that he has been denied access to a computer or the Internet to advance his business ideas and to search for employment.

         Plaintiff's fourth and final claim alleges that from October 15, 2019 to the present, defendant has denied plaintiff “the opportunity to attend church or church services.” Doc. No. 4, p. 8.

         Plaintiff seeks damages and declaratory relief.

         III. Plaintiff cannot bring a claim under § 1983.

         Section 1983 provides a cause of action against “any person who, acting under color of state law, deprives another of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Plaintiff identifies defendant Peete as a United States Probation Officer. As such, she is not acting under color of state law and cannot be liable under § 1983. Wheedlin v. Wheeler, 373 U.S. 647, 650 n.2 (1963)(federal officer not liable under § 1983); Big Cats of Serenity Springs, Inc. v. Rhodes, 843 F.3d 853, 869 (10th Cir. 2016)(§ 1983 not directed at federal officials' conduct).

         IV. Plaintiff's allegations do not support a ...


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