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Hardesty v. (FNU) Fay

United States District Court, D. Kansas

December 18, 2019

TONY ALLEN HARDESTY, JR., Plaintiff,
v.
(FNU) FAY, Defendant.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge.

         Plaintiff, appearing pro se and in forma pauperis, filed this civil rights complaint under 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he was housed at the Saline County Jail in Salina, Kansas (“SCJ”).

         I. Nature of the Matter before the Court

         Plaintiff asserts that he covered the window in his cell with paper while he was using the restroom. Plaintiff alleges that Defendant Fay did not say anything or give Plaintiff a warning before coming with five or six more COs to Plaintiff's cell and pulling a pepper ball gun on Plaintiff with it “ready to discharge.” (Doc. 1, at 2.) Plaintiff felt threatened because he didn't know what was going to happen, so Plaintiff told Fay that Plaintiff was “going to knock him on his ass if he shoots me for no reason with no warning.” (Doc. 1, at 6.) Plaintiff alleges that Fay “almost discharged” the pepper gun, and Plaintiff was upset that it was “brought to his door.” Id. at 3, 6. Corporal McManigal told Plaintiff that Fay told him that he asked Plaintiff to remove whatever was in Plaintiff's window. Plaintiff alleges that Deputy Fay gave a false statement, committed perjury and should be fired.

         On August 30, 2019, the Court entered a Memorandum and Order and Order to Show Cause (Doc. 4) (“MOSC”), granting Plaintiff until September 27, 2019, in which to show good cause why his Complaint should not be dismissed due to the deficiencies set forth in the MOSC. Plaintiff filed a Response (Doc. 5), alleging that when the COs came to his cell door he got into a verbal altercation with them and he punched the cell window, cracking it. Plaintiff alleges that Deputy Fay then fired his tazer, hitting Plaintiff in the left side of his waist. Plaintiff alleges that his cell door was closed and he was tazed through the open tray slot. Plaintiff alleges that Defendant Fay used excessive force in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

         On October 2, 2019, the Court entered a Memorandum and Order (Doc. 7), dismissing Plaintiff's claims against Defendant Saline County Jail and Defendant McManigal. Regarding Plaintiff's Eighth Amendment claim against Defendant Fay, the Court found that the proper processing of Plaintiff's claim could not be achieved without additional information from appropriate officials of the SCJ. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). Accordingly, the Court ordered the appropriate officials of the SCJ to prepare and file a Martinez Report, noting that once the report has been received, the Court can properly screen Plaintiff's claims under 28 U.S.C. § 1915. At the direction of the Court, counsel for the SCJ filed a Martinez Report (Doc. 9).

         II. Statutory Screening of Prisoner Complaints

         The 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. § 1915A(b)(1)- (2).

         “To 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).

         A 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.

         The 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).

         The 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).

         III. DISCUSSION

         Plaintiff alleges that Defendant Fay violated his Eighth Amendment right to be free from cruel and unusual punishments. Because Plaintiff is a pretrial detainee, his claims are governed by the Due Process Clause rather than the Eighth Amendment. Wright, 651 Fed.Appx. at 748 (citing Lopez v. LeMaster, 172 F.3d 756 n.2 (10th Cir. 1999)). Even so, the Court ...


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