United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, currently a prisoner in the Scott
County Jail, Benton, Missouri, proceeds pro se and in forma
of the Complaint
events in question took place during plaintiff's
detention in the Cherokee County Jail, Columbus, Kansas.
Plaintiff names Sheriff David Groves, Deputy J. Click,
Captain M. Tippie, and Deputy (FNU) Duckett as defendants.
sole count of the complaint, plaintiff alleges that on
October 10, 2019, a legal envelope was returned to him
already opened.He states that defendant Click opened the
envelope and directed defendant Duckett to deliver it to
plaintiff. Plaintiff seeks injunctive relief in a pending
Arkansas case due to the exposure of private information,
monetary compensation, and demotions for those involved.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief 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
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
claim implicates the right of access to the courts. “To
state a claim for violation of the constitutional right to
access the courts, a prisoner ‘must demonstrate actual
injury… -- that is, that the prisoner ‘must
demonstrate actual injury … -- that is, that the
prisoner was frustrated or impeded in his efforts to pursue a
nonfrivolous legal claim concerning his conviction or
conditions of confinement.'” Burnett v.
Jones, 437 Fed.Appx. 736, 744 (10th Cir.
2011), quoting Gee v. Pacheco, 627 F.3d 1178, 1191
(10th Cir. 2010). Here, because plaintiff has not
identified any prejudice to his Arkansas litigation as a
result of the opened mail, his bare claim does not state a
violation of access to the courts. See Arney v.
Simmons, 26 F.Supp.2d 1288, 1296 (D. Kan. 1998)(finding
no constitutional deprivation where plaintiffs had
“made no showing of prejudice to pending or
plaintiff fails to adequately allege the personal
participation of defendants Grove and Tippie. Plaintiff makes
no specific claim of involvement by Sheriff Grove, nor is
there a claim that he maintained a policy or custom that
resulted in a constitutional violation. Finally, his
supervisory status alone does not give rise to liability
under § 1983. See Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009)(stating there
must be an “affirmative link” between the
constitutional deprivation alleged and either the
supervisor's participation or failure to supervise and
train)(citing Green v. Branson, 108 F.3d 1296, 1302
(10th Cir. 1997)). Defendant Tippie responded to
plaintiff's grievance concerning the mail; however, such
participation does not state a ground for relief. The denial
of a grievance “without any ...