United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
Ryan Matthew Brown, an inmate at the Sedgwick County Jail in
Wichita, Kansas, brings this pro se civil rights
action under 42 U.S.C § 1983. He proceeds in forma
pauperis. For the reasons discussed below, Plaintiff is
ordered to show cause why his complaint should not be
Nature of the Matter before the Court
Brown's complaint (ECF No. 1) takes issue with the
actions of two bail bondspersons on July 26, 2018. Plaintiff
names as defendants A Second Chance Bail Bonds and Dante
Duncan, one of the bondsmen.
alleges two employees of A Second Chance Bail Bonds arrived
at his location at about 8:30 a.m. to serve him with a drug
warrant. Plaintiff happened to be outside getting something
out of his car when they arrived. He suspected the men were
gang members and jumped into his car, locking the doors. One
of the men approached and pounded on Plaintiff's car
window with a gun in his hand. Plaintiff put his car in
reverse and hit the men's vehicle, which the other man
had moved in the meantime to block him in. He maneuvered his
car around the blocking vehicle. As he drove away, he heard
several gun shots and realized the men were firing at his
car, hitting it several times. Plaintiff then called the
friends he was staying with to check on their safety and at
that point learned the men were bail bondsmen.
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. §
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).
pro 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).
state a claim under section 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, 48-49
(1988) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327, 330-331 (1986); Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 155 (1978));
Northington v. Jackson, 973 F.2d 1518, 1523 (10th
Cir. 1992). “[T]he only proper defendants in a [§]
1983 claim are those who represent the state in some
capacity....” Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1447 (10th Cir. 1995) (citation
and internal brackets omitted). “‘[T]he
under-color-of-state-law element of § 1983 excludes from
its reach merely private conduct, no matter how
discriminatory or wrongful.'” Brokers'
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1143 (10th Cir. 2014) (quoting Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
Plaintiff seeks to hold private actors accountable under
§ 1983 for the incident on July 26, 2018. Plaintiff does
not plead that the defendants acted under color of state law,
and their status as a bonding company and a bondsperson does
not cause them to be state actors. See United States v.
Poe, 556 F.3d 1113, 1123-24 & n.14 (10th Cir. 2009)
(rejecting plaintiff's argument of a “symbiotic
relationship” between bail bonds industry and law
enforcement and finding a bounty hunter, who was acting out
of self-interest rather than at the behest of law
enforcement, was not a state actor for purposes of Fourth
Amendment search and seizure, and noting that the result
would be the same for the state action element of a §
1983 claim because the same test applies in both Fourth
Amendment and § 1983 contexts); Dean v. Olibas,
129 F.3d 1001, 1006 n.4 (8th Cir. 1997) (“As a general
matter, bondsmen are private citizens who interact with the
state in ...