Brooks (ID 33599) v. Kansas, State of et al
Filing
2
ORDER ENTERED: Plaintiff is granted twenty days to EITHER submit the $350.00 district court filing fee OR to submit an executed and properly supported form motion for seeking leave to proceed in forma pauperis under 28 U.S.C. 1915. Plaintiff i s granted twenty (20) days to show cause why the complaint should not be summarily dismissed pursuant to 28 U.S.C. 1915A(b) for the reasons stated by the court. Signed by Senior District Judge Sam A. Crow on 1/29/2013. (Mailed to pro se party Michael Lee Brooks by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL LEE BROOKS,
Plaintiff,
v.
CASE NO. 12-3260-SAC
STATE OF KANSAS, et al.,
Defendants.
O R D E R
This matter comes before the court on form complaint for seeking
relief under 42 U.S.C. § 1983.
Plaintiff is a prisoner incarcerated
in the Larned Correctional Mental Health Facility (LCMFH) in Kansas.
District Court Filing Fee
The district court filing fee in this civil action is $350.00.
28 U.S.C. § 1914(a).
Plaintiff has neither submitted this statutory
fee, nor in the alternative a motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915 without prepayment of the district
court filing fee.
To proceed in this matter, plaintiff must satisfy
one of these two statutory requirements.
The court will allow
plaintiff a limited time to do so by either paying the full district
court filing fee, or submitting a properly supported motion for leave
to proceed in forma pauperis upon a court approved form.
The failure
to file a timely response may result in the complaint being dismissed
for lack of prosecution, and without further prior notice.
Screening the Complaint
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 the present case, plaintiff seeks monetary relief for himself,
for all other LCMHF inmates, and to pay for more training of LCMHF
employees and relief to Pawnee County taxpayers.
The two defendants
named in the complaint are the State of Kansas and David (Rick)
Roberts.1
Citing his conviction in a 1982 criminal case, plaintiff
styles his first claim as “eminent domain,” alleging the use of force
to arrest and assault plaintiff at his workplace in 1982.
Second,
plaintiff claims his right to life and property was abridged in
violation of the Due Process clause by the knowing false prosecution
1
Given plaintiff’s allegations against this defendant, the court presumes
defendant Roberts was a prosecutor in a criminal proceeding involving plaintiff.
of plaintiff by Roberts for a significant payment.
Third, plaintiff
appears to contend his confinement pursuant to his conviction in the
1982
case
Amendment.
constitutes
slavery
in
violation
of
the
Thirteenth
Fourth, plaintiff claims Roberts slandered and defamed
plaintiff by using the internet to identify plaintiff a sex offender.
And fifth, plaintiff claims the eighteen plus years he spent in
isolation
during
service
of
his
1982
sentence
violated
the
constitutional prohibition against cruel and unusual punishment.
Plaintiff also cites a pending civil action recently filed in the
Reno County District Court, and indicates he is attempting to reopen
his 1982 criminal case.
However, notwithstanding the obvious question of whether any of
plaintiff’s claims are timely raised, the court finds the complaint
is subject to being summarily dismissed because any claim for damages
against the State of Kansas is barred by the Eleventh Amendment,2 a
prosecutor
is
entitled
associated
with
the
to
immunity
judicial
phase
for
of
activities
the
criminal
intimately
process,
3
plaintiff’s allegations of slander and defamation present no cause
of action under § 1983,4 and plaintiff’s claim of being subjected to
cruel and unusual punishment is conclusory at best and without any
factual
basis
for
establishing
any
personal
participation
by
defendant Roberts.
Plaintiff is thus directed to show cause why the complaint should
not be dismissed as stating no claim for relief, 28 U.S.C. § 1915A(b).
2
See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)(Eleventh Amendment
doctrine of sovereign immunity bars actions in federal court for damages against
a State, its agencies and its officials acting in their official capacities unless
the State has waived its immunity);Connelly v. State Highway Patrol, 271 Kan. 944,
962 (2001)(Kansas has not waived sovereign immunity for suits seeking monetary
damages under § 1983).
3
Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
4
See DeShaney v. Winnebago County DSS, 489 U.S. 189, 201-03 (1989)(§ 1983 does
not impose liability for violations of duties of care arising out of state tort law).
The failure to file a timely response may result in the complaint being
dismissed for the reasons stated herein, and without further prior
notice.
IT IS THEREFORE ORDERED that plaintiff is granted twenty days
to EITHER submit the $350.00 district court filing fee OR to submit
an executed and properly supported form motion for seeking leave to
proceed in forma pauperis under 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days
to show cause why the complaint should not be summarily dismissed
pursuant to 28 U.S.C. § 1915A(b) for the reasons stated by the court.
The clerk’s office is to provide plaintiff with a court approved
form motion for filing under 28 U.S.C. § 1915.
IT IS SO ORDERED.
DATED:
This 29th day of January 2013 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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