Witherspoon v. Wyandotte County et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed n forma pauperis is provisionally granted. Plaintiff is directed to submit the initial partial filing fee of $1.00 to the clerk of the court on or before August 17, 2013. Plaintiff's motion 4 for extension of time to file a response is granted. This matter is dismissed for failure to state a claim for relief. Signed by Senior District Judge Sam A. Crow on 7/17/2013. (Mailed to pro se party Darshawn Witherspoon by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DARSHAWN WITHERSPOON,
Plaintiff,
v.

CASE NO. 13-3069-SAC

WYANDOTTE COUNTY, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. By its order of June 11, 2013, the court directed plaintiff
to submit certified financial records and to show cause why this matter
should not be dismissed for failure to state a claim for relief.
Plaintiff has filed a motion for additional time (Doc. 4) and
two responses (Docs. 5 and 6). The first response contains financial
records from the Wyandotte County Detention Center. The court has
considered the financial transactions for the months of March, April,
and May 2013, and finds one deposit of $18.67 and a balance of $2.92
in one month. The court has calculated an initial partial filing fee
of $1.00, based upon 20% of the larger amount, rounded to the lower
half dollar. See 28 U.S.C. § 1915(b). Plaintiff will be required to
pay the balance of the $350.00 filing fee in installment payments.
Plaintiff’s second response consists of a two-page pleading
alleging claims of conflict of interest, antagonizing conditions,
police brutality, false incarceration, cruel and unusual punishment,
and miscarriage of justice. In support, he attaches an affidavit for
application for warrant dated March 12, 2009, describing incidents

occurring in the Wyandotte County Detention Facility in which
plaintiff

threatened

to

kill

deputies

upon

his

release

from

confinement; a six-count criminal information charging plaintiff with
the delivery and distribution of cocaine and the failure to affix
appropriate tax stamps; and an affidavit for application of warrant
prepared in March 2013 describing controlled purchases of crack
cocaine from the plaintiff in November and December 2012.
Plaintiff proceeds pro se, and the court construes his pleadings
liberally but does not serve as his advocate. Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2006).
To avoid dismissal, plaintiff’s “complaint must contain enough
allegations of fact, taken as true, ‘to state a claim to relief that
is plausible on its face,’” a threshold that is higher than a mere
possibility or a conceivable claim. Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Plaintiff’s pleading only broadly asserts claims, and he has made
no argument of fact or law that specifically refers to the attachments
or to any specific act or omission that allegedly violated his rights.
The legal pleadings attached concern criminal allegations against
plaintiff, but they do not establish any misconduct, conflict of
interest, or other wrongdoing by any defendant. The court concludes
plaintiff has not stated a plausible claim and that this matter must
be dismissed for failure to state a claim for relief.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is provisionally granted.
Plaintiff is directed to submit the initial partial filing fee of $1.00
to the clerk of the court on or before August 17, 2013. Payments shall

continue pursuant to 28 U.S.C. § 1915(b)(2) until plaintiff satisfies
the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff’s motion for extension of time
to file response (Doc. 4) is granted.
IT IS FURTHER ORDERED this matter is dismissed for failure to
state a claim for relief.
Copies of this order shall be transmitted to the plaintiff and
to the finance office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 17th day of July, 2013, at Topeka, Kansas.

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