United States District Court, D. Kansas
Crow, U.S. District Senior Judge.
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.
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.
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).
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).
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.
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.
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.
seeks damages and declaratory relief.
Plaintiff cannot bring a claim under § 1983.
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).
Plaintiff's allegations do not support a ...