Edwards v. United States of America et al

Filing 6

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is to show cause within twenty (20) days why the complaint should not be summarily dismissed as legally frivolous and as stating no claim for re lief. Plaintiff's motion 3 for appointment of counsel and motion 5 to compel discovery are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 8/10/2012. (Mailed to pro se party Richard Edwards by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICHARD EDWARDS,
Plaintiff,
v.

CASE NO. 11-3219-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

O R D E R
Plaintiff,

a

prisoner

incarcerated

in

the

United

States

penitentiary in Leavenworth, Kansas (USPLVN), proceeds pro se in
this civil action.

He has paid the initial partial filing fee

assessed by the court under 28 U.S.C. § 1915(b)(1), and is granted
leave to proceed in forma pauperis.

Plaintiff remains obligated to

pay the remainder of the $350.00 district court filing fee in this
civil action, through payments from his inmate trust fund account as
authorized by 28 U.S.C. § 1915(b)(2).
Plaintiff states he is seeking relief for the alleged violation
of his civil rights, see Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and cites his
unsuccessful claim submitted under the Federal Tort Claims Act
(FTCA).

The defendants named in the complaint are the United

States, the USPLVN Warden, and a USPLVN employee.
Under Bivens, inmates may assert claims of personal liability
against

individual

constitutional

prison

rights

but

officials
may

not

for
assert

violations
claims

of

their

against

the

government or prison officials in their official capacities; while

inmates may file claims of liability against the United States under
the FTCA but may not assert claims of personal liability against
prison officials for violations of their constitutional rights. See
Carlson v. Green, 446 U.S. 14, 18-23 (1980).
Although a complaint filed pro se by a party proceeding in
forma pauperis must be given a liberal construction, Haines v.
Kerner, 404 U.S. 519, 520 (1972), even under this standard 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).

Plaintiff bears the burden of alleging “enough facts to state a
claim to relief that is plausible on its face.”

Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007).
In the present case, the substance of plaintiff’s allegations
remain elusive at best, explained only by his “Affidavit of Negative
Averment” wherein plaintiff references Uniform Commercial Code
principles to avoid “performance” on any contract or agreement he
has not voluntarily entered into.1
Plaintiff also appears to challenge the disposition of his FTCA
claim, whereby the Bureau of Prisons stated that an investigation of
plaintiff’s
1

claim

did

not

reveal

that

plaintiff

suffered

any

Plaintiff states in part in his Affidavit of Negative Averment

that:
“Richard Edwards JR. is a non-statutory Living being,
Holder in due course, Creditor, Secured Party, a Private
religious soul. Richard Edwards JR. has exercised the
right that is codified in the statutory law form (ucc) 1207, whereby Richard Edward JR. has served the Common Law
Right not to be bound by, nor compelled to perform under
any contract, commercial agreement, or bankruptcy that
Richard Edwards JR. has not entered into knowingly,
voluntarily, and intentionally.”
2

property damage.

Plaintiff maintains in his complaint that he gets

“nervous and fearful” in the presence of a particular officer, asks
this court to “grant him a hearing for being [a] victim/witness of
criminal activities,” and states he has exhausted administrative
remedies without a reasonable settlement to his claim of official
misconduct and the violation of his constitutional rights.2
Finding no discernable factual or legal basis in the complaint
to plausibly establish an actionable claim under Bivens or the FTCA,
the court concludes this matter is subject to being summarily
dismissed as legally frivolous and as stating no claim upon which
relief can be granted.

28 U.S.C. § 1915(e)(2)(B)(i)-(ii).

The

court thereby directs plaintiff to show cause why this action should
not be summarily dismissed.

The failure to file a timely response

may result in the complaint being dismissed without further prior
notice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, with payment of the
remainder of the district court filing fee to proceed as authorized
by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is to show cause within
twenty (20) days why the complaint should not be summarily dismissed
as legally frivolous and as stating no claim for relief.

2

In a separate “Affidavit of Criminal Charges by Witness/Victim
of Criminal Activity” attached to his motion to compel discovery
(Doc. 5), plaintiff states in part that as the “victim/witness” in
this matter he declares that the named defendants “did knowingly and
willfully conspire and act to oppress, injure and damage” him.
Plaintiff then itemizes criminal charges of malfeasance/malice,
involuntary servitude, threat, barratry, and official misconduct
against the defendants.
3

IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 3) and motion to compel discovery (Doc. 5) are
denied without prejudice.
IT IS SO ORDERED.
DATED:

This 10th day of August 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

4