United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
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,
Nature of the Matter before the Court
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
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.
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).
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).
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 ...