United States District Court, D. Kansas
LARRY A. HUSMAN, Plaintiff,
FNU BRECKEN, et. al, Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
Larry A. Husman 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 discussed
herein. Plaintiff is also given an opportunity to file a
proper amended complaint to cure the deficiencies.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. (Doc. 3.) Plaintiff is
incarcerated at the El Dorado Correctional Facility in El
Dorado, Kansas (“EDCF”).
alleges that on June 17, 2019, while CO Brecken was working
the control booth in G cellhouse at EDCF, she shut the cell
door on Plaintiff's wheelchair twice during one shift.
Plaintiff alleges that the second time it caught
Plaintiff's right elbow between the cell door and the
wheelchair, causing damage to his right elbow. Plaintiff
alleges that he was housed in a non-handicap cell while two
other inmates who were not handicapped resided in a handicap
cell. Plaintiff alleges that CO Brecken was negligent in
doing her job and seeks to have her terminated “due to
lack of attention to detail.” (Doc. 1, at 4-5.)
Plaintiff alleges deliberate indifference and cruel and
names as Defendants: CO Brecken; EDCF; and the Kansas
Department of Corrections (“KDOC”). Plaintiff
seeks monetary damages and the termination of CO Brecken.
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).
Negligence and ...