Berry v. Toms et al

Filing 6

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to supplement the complaint to show cause why defendants Armstrong and the Unified Government should not be summarily dismissed. Signed by Senior District Judge Sam A. Crow on 11/26/2012. (Mailed to pro se party Michael Lee Berry by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL LEE BERRY,
Plaintiff,
v.

CASE NO. 12-3179-SAC

TRAVIS TOMS, et al.,
Defendants.

O R D E R
Plaintiff, a prisoner incarcerated in a Kansas correctional
facility, proceeds pro se on a complaint seeking relief under 42 U.S.C.
§ 1983.

Plaintiff 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).
Because plaintiff is a prisoner, the court is required to screen
the complaint and to dismiss it or any portion thereof that is
frivolous, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant immune from such relief.
U.S.C. ' 1915A(a) and (b).

28

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 Aconclusory 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 Aenough facts to state a claim
to relief that is plausible on its face.@
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

See Robbins v. Oklahoma, 519 F.3d

1242, 1247 (10th Cir.2008)(stating and applying Twombly standard for
dismissing a complaint as stating no claim for relief).
ATo 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).
In this action, plaintiff seeks actual and punitive damages on
allegations related to his arrest on August 10, 2010, by Kansas City,
Kansas

Police

Officers

Toms,

Underwood,

Locke,

and

Crawford.

Plaintiff first claims these officers used excessive force during
plaintiff’s arrest.

Plaintiff next claims he was denied due process

by Kansas City, Kansas, Police Chief Armstrong who allegedly conspired
with defendant Underwood to destroy or hide footage from the officer’s
dash camera on the night of the arrest.

Plaintiff further claims the

Unified Government of Wyandotte County/Kansas City, Kansas (“Unified
Government”) unconstitutionally allowed its agents to beat plaintiff
to unconsciousness prior to plaintiff being taken to the hospital
after his arrest.
While plaintiff’s allegations against Officers Toms, Underwood,
Locke, and Crawford appear sufficient to require a response, the court
first allows plaintiff an opportunity to supplement the complaint to

show cause why the remaining defendants should not be summarily
dismissed for reasons stated below.
Plaintiff’s bare and conclusory claim of a conspiracy by Chief
Armstrong to violate plaintiff’s rights is speculative at best, and
insufficient to state a viable claim for relief against this
defendant.

See Bell Atlantic Corp. v. Twombly, 550 U .S. 544, 555

(2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
And while a municipal governmental entity is a “person" for
purposes of being sued under § 1983, a municipality cannot be held
vicariously responsible on the basis of respondeat superior solely
because it employs a tortfeasor.

Instead, a municipal corporation

can be held liable only “where the constitutional injury complained
of results from the implementation or execution of the policy or custom
of the governmental body.”
(10th Cir.2003).

Dubbs v. Head Start, Inc., 336 F.3d 1194

Thus to state a viable claim for relief under § 1983

against the Unified Government, plaintiff must allege sufficient
facts to plausibly find, in part, the defendant police officers acted
pursuant to a policy or custom of that municipality in the alleged
violation of plaintiff’s constitutional rights.

Plaintiff fails to

do so in this matter, thus his claim for damages against the Unified
Government

is

subject

to

being

dismissed

because

plaintiff’s

allegations against this defendant state no claim for relief.
Accordingly, plaintiff is directed to show cause why defendants
Armstrong and the Unified Government should not be summarily dismissed
from the complaint.

The failure to file a timely response may result

in these defendants being summarily 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 $350.00 district court filing fee to proceed as
authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days
to supplement the complaint to show cause why defendants Armstrong
and the Unified Government should not be summarily dismissed for the
reasons stated by the court.
IT IS SO ORDERED.
DATED:

This 26th day of November 2012 at Topeka, Kansas.

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