United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW, SENIOR U.S. DISTRICT JUDGE
Michael Steven Hayes 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 Complaint that are
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.
Plaintiff alleges in his Complaint that on July 31, 1993, a
warrant was issued by the county attorney for Atchison
County, Kansas, and a complaint was filed against “a
Fugitive From Justice” on August 11, 1993, in Platte
County, Missouri. Atchison County was granted a 90-day
continuance to receive a Governor's Warrant to extradite
Plaintiff. On October 13, 1993, Atchison County demanded
Plaintiff as a juvenile, and P.D. Keith Ludwig stated that
Plaintiff is a resident of Missouri and a legal adult who is
fighting extradition to Kansas so a governor's warrant is
required for transportation across state lines, and even if
he was demanded as a juvenile, they would need his
parent's written consent to take a juvenile from state to
state. On October 28, 1993, Atchison County held a hearing to
certify Plaintiff as an adult and he was transported from
state to state without a governor's warrant or his
parent's consent. Plaintiff alleges that the Platte
County Sheriff's Department violated his rights by
allowing Atchison County to transport Plaintiff.
names the Platte County Sheriff's Department as the sole
defendant and seeks one million dollars in damages.
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 ‘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
raised this same claim in No. 18-3230. In that case, the
Court found that Plaintiff's claims were barred by the
statute of limitations. 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 statute of