United States District Court, D. Kansas
RICHARD C. BUTLER, Plaintiff,
LAURA K. KELLY, Defendant.
Crow, U.S. District Senior Judge.
case is before the court for the purpose of screening
plaintiff's pro se complaint and supplemental
materials. Doc. Nos. 1, 5 and 8. The court proceeds pursuant
to 28 U.S.C. § 1915.
Pro se standards
pro se litigant's pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro
se litigant, however, is not relieved from following the
same rules of procedure as any other litigant. See Green
v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). A
district court should not “assume the role of advocate
for the pro se litigant.” Hall,
supra. Nor is the court to “supply additional
factual allegations to round out a plaintiff's
complaint.” Whitney v. State of New Mexico,
113 F.3d 1170, 1173-74 (10th Cir. 1997).
28 United State Code Section 1915(e)(2)(B)(ii) permits the
court at any time to consider whether a complaint filed in
forma pauperis fails to state a claim on which relief may be
granted. 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 plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully. 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. 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,
will not accept broad allegations which lack sufficient
detail to give fair notice of what plaintiff's claims
are. See Robbins v. Oklahoma ex rel. Dep't of Human
Servs., 519 F.3d 1242, 1250 (10th Cir. 2008).
broadly alleges “slander/libel/defamation of
character.” Doc. No. 1, p. 1. He also claims a denial
of equal protection as set out by the Fourteenth Amendment.
Id. at p. 3. He indicates that defendant has accused
him of “heinous and fraudulent charges.”
Id. at p. 2. After examining the exhibits to the
complaint and the supplemental materials plaintiff has filed,
it appears that the “heinous charges” are related
to state court criminal charges of sexual assault upon which
plaintiff is incarcerated and facing trial. Plaintiff also
asserts that defendant accessed his personal bank account to
pay bills without his permission. He does not indicate how
this amounts to slander, libel, defamation of character, or
the denial of his right to equal protection of the laws.
Plaintiff seeks monetary damages.
Plaintiff does not state a claim for a § 1983
has written his complaint on forms for filing an action under
42 U.S.C. § 1983. Section 1983 provides that a person
acting under color of state law who “subjects, or
causes to be subjected, any citizen of the United States ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured.” A person acting under color of state
law is a state government official or person who acts under
the authority of state law or a private person whose conduct
is fairly attributable to the State. See Scott v.
Hern, 216 F.3d 897, 906 (10th Cir. 2000).
Plaintiff does not allege facts showing that defendant Kelly
took action under the authority of state law or in a manner
attributable to the State, which deprived plaintiff of his
rights under the Constitution or federal law. See
Schaffer v. Salt Lake City Corp., 814 F.3d 1151,
1157 (10th Cir. 2016)(furnishing information to
law enforcement officers, without more, does not constitute
joint action under color of state law); Carey v.
Continental Airlines, Inc., 823 F.2d 1402, 1404
(10th Cir. 1987)(complaining to police officer
about an individual's conduct does not constitute state
action simply because the officer arrests the individual
following questioning); Lee v. Town of Estes Park,
820 F.2d 1112, 1115 (10th Cir. 1987)(same).
addition, plaintiff's allegations fall short of
describing how the Constitution or federal law protects
plaintiff's good name or reputation from damage.
Siegert v. Gilley, 500 U.S. 226, 234
(1991)(defamation by itself is not a constitutional
deprivation); Angel v. Torrance County Sheriff's
Dept., 183 Fed.Appx. 707, 708 (10th Cir.
2006)(arrest on drug charges which were later dismissed does
not support a § 1983 claim for defamation).
Plaintiff does not state a claim for denial of equal