Lee (ID 74977) v. Kansas, State of et al

Filing 4

ORDER ENTERED: Plaintiff is given thirty (30) days in which to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 11/16/2012. (Mailed to pro se party Milton Lee by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MILTON LEE,
Plaintiff,
v.

CASE NO.

12-3220-SAC

STATE OF KANSAS,
et al.,
Defendants.
O R D E R
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983.

Plaintiff has also filed a Motion for Leave to Proceed in forma

pauperis.

Although plaintiff’s address suggests that he was not

confined at the time this action was filed; the claims he raises
concern his prior imprisonment.

Having considered the materials

filed, the court finds as follows.
Plaintiff names three defendants:
Jones, and Ray Roberts.

As the factual background for his complaint,

he describes two incidents as follows.
defendant

Jones,

while

State of Kansas, Richard

acting

as

On November 17, 2011,

plaintiff’s

court-appointed

attorney, “did not object to the withholding of 120 days of jail time
credits . . . from the sentence imposed in State v. Lee, Case No.
10-2087.”1

The credits were “authorized by K.S.A. 21-4614.”

The

1
The court takes judicial notice of the docket sheet in State v. Milton, Case
No. 10 CR 2087, in which Mr. Lee was charged with criminal threat in the District

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case was “for a direct criminal contempt which was purged on June
16, 2011.”
On January 20, 2012, defendant Roberts, acting as Secretary of
Corrections for the State of Kansas, “withheld 102 days of good time”
credits from the above-referenced sentence that were authorized by
K.S.A. 21-4614.

The credits were withheld “for disciplinary

conviction from the Shawnee County Jail.”

Plaintiff complains that

“all county jails in the State of Kansas do not have a disciplinary
process” for withholding good time credits that complies with due
process.
Plaintiff cites the 14th Amendment and asserts that he was
deprived of liberty without due process and denied equal protection
of the law.
Mr.
litigant.

Lee

He seeks one million dollars in damages.
has

previously

been

designated

a

three-strikes

See Lee v. Scharf, Case No. 04-3312-GTV (D.Kan. Oct. 28,

2004)(and cases cited therein.).

In addition, he has had filing

restrictions imposed in at least one case in this court.

See Lee

v. City of Topeka, 10-4126-CM-JPO (D.Kan. Oct. 20, 2011).

Because

Mr. Lee seeks to proceed in forma pauperis, the court proceeds to
screen the complaint.
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”
Court of Shawnee County, Kansas. The court also takes notice of Lee v. State of
Kansas, Case No. 11-3167 (D.Kan. Oct. 26, 2011), in which Mr. Lee sought, without
success, to challenge his arrest and to have this court enjoin his state criminal
prosecution.

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Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

without

However, a pro se
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).

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.”
(10th Cir. 1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74

The court accepts all well-pleaded allegations

in the complaint as true.
Cir. 2006).

Anderson v. Blake, 469 F.3d 910, 913 (10th

Nevertheless, “when the allegations in a complaint,

however true, could not raise a claim of entitlement to relief,”
dismissal is appropriate.
544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

To avoid dismissal, the complaint’s “factual

allegations must be enough to raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555.

Put another way,

there must be “enough facts to state a claim to relief that is
plausible on its face.”

Id. at 570.

The complaint must offer “more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”

Id. at 555.

Having screened all

materials filed, the court finds that this complaint is subject to
being dismissed for the following reasons.
The State of Kansas is absolutely immune to suit for money
damages.

Accordingly, this action states no viable claim and must

be dismissed as against the State of Kansas.
3

This suit is also subject to being dismissed as against
defendant Jones.

“To state a claim under section 1983, a plaintiff

must allege the violation of a right secured by the Constitution or
law of the United States, and must show that the alleged deprivation
was committed by a person acting under color of state law.”
v. Atkins, 487 U.S. 42, 48-49 (1988).
does not act under color of state law.

West

A court-appointed attorney
Accordingly, this action

states no viable claim and must be dismissed as against defendant
Jones.
Plaintiff’s claim against defendant Roberts is subject to being
dismissed because

Mr. Lee

indicating

defendant

that

constitutional rights.

utterly fails to allege any facts
Roberts

violated

his

federal

Plaintiff does not provide dates and

describe other circumstances regarding the alleged withholding of
good time credit.

Nor does he explain why the withholding was

unconstitutional.

In any event, plaintiff is barred from seeking

money damages on a claim of unlawful withholding of sentence credit
unless and until he has had the administrative decision to withhold
such credit overturned.

Mr. Lee does not allege facts showing that

he successfully had good time credit restored through the proper
administrative process.

Nor does he show that he has exhausted any

claim regarding his sentence credit in the state courts.
For the foregoing reasons, the court finds that plaintiff fails
to state a federal constitutional claim against any of the named
4

defendants.

Plaintiff is given time to show cause why this action

should not be dismissed.

If he fails to show good cause within the

time allotted, this action may be dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days in which to show cause why this action should not
be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated this 16th day of November, 2012, at Topeka, Kansas.

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

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