Lowe (ID 61931) v. Ash et al

Filing 7

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted untilMarch 10, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint 1 should not be dismissed. Plaintiff's Motion to Appoint Counsel 3 is denied. Signed by Magistrate Judge David J. Waxse on 02/14/16. Mailed to pro se party Vincent Lowe by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

VINCENT LOWE,
Plaintiff,
v.

CASE NO. 16-3233-SAC-DJW

DONALD ASH, BRIAN TUCKER,
and JOHN DOE,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Vincent Lowe is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). Plaintiff
alleges in his Complaint that on October 25, 2014, while he was an inmate at the Wyandotte
County Detention Center, Plaintiff was asked to move to a different cell. Plaintiff disobeyed the
order, and during a forced cell move while Plaintiff was handcuffed with his hand behind his
back, John Doe “unprovoked slammed [Plaintiff] to the floor using excessive force.” Deputy
John Doe then placed his knees on Plaintiff’s head while pulling Plaintiff’s arms up toward the
middle of Plaintiff’s back. The other officers failed to stop Deputy John Doe from assaulting
Plaintiff. Plaintiff alleges that the use of excessive force violated his Eighth Amendment right to

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be free from cruel and unusual punishment. Plaintiff seeks compensatory, punitive, and nominal
damages.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“To 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)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 558 (2007).
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). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court,
a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant
did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007). 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.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).

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III. DISCUSSION
1. Statute of Limitations
The statute of limitations applicable to § 1983 actions is determined from looking at the
appropriate state statute of limitations and tolling principles. See Hardin v. Straub, 490 U.S.
536, 539 (1989). “The forum state’s statute of limitations for personal injury actions governs
civil rights claims under both 42 U.S.C. § 1981 and § 1983. . . . In Kansas, that is the two-year
statute of limitations in Kan. Stat. Ann. § 60–513(a).” Brown v. Unified Sch. Dist. 501, Topeka
Pub. Sch., 465 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted). The same two-year statute
of limitations governs actions under 42 U.S.C. § 1985. See Alexander v. Oklahoma, 382 F.3d
1206, 1212 (10th Cir.), rehearing denied, 391 F.3d 1155 (10th Cir. 2004), cert. denied, 544 U.S.
1044 (2005).
While state law governs the length of the limitations period and tolling issues, “the
accrual date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S.
384, 388 (2007). Under federal law, the claim accrues “when the plaintiff has a complete and
present cause of action.” Id. (internal quotation marks and citation omitted). In other words, “[a]
§ 1983 action accrues when facts that would support a cause of action are or should be apparent.”
Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks and citation
omitted), cert. denied 549 U.S. 1059 (2006). A district court may dismiss a complaint filed by
an indigent plaintiff if it is patently clear from the allegations as tendered that the action is barred
by the statute of limitations. Id. at 1258–59; see also Jones v. Bock, 549 U.S. 199, 214 (2007);
Hawkins v. Lemons, No. 09-3116-SAC, 2009 WL 2475130, at *2 (D. Kan. Aug. 12, 2009).
It plainly appears from the face of the Complaint that Plaintiff’s claim is subject to
dismissal as barred by the applicable two-year statute of limitations. Plaintiff filed his Complaint

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on November 17, 2016. Plaintiff’s alleged incident of excessive force occurred on October 25,
2014, and the two-year statute of limitations began running under Kansas law at that time. It
thus appears that any events or acts of Defendants taken in connection with the excess force
incident took place more than two years prior to the filing of Plaintiff’s Complaint and are timebarred. See Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir. 1995) (district court may consider
affirmative defenses sua sponte when the defense is obvious from the face of the complaint and
no further factual record is required to be developed). Plaintiff has not alleged facts suggesting
that he would be entitled to statutory or equitable tolling.
2. Motion to Appoint Counsel
Plaintiff filed a Motion to Appoint Counsel (Doc. 3), arguing that he is indigent, his
imprisonment will hinder his ability to litigate, and that the case is complex and will require
substantial investigation and discovery.
The Court has considered Plaintiff’s motion for appointment of counsel. There is no
constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543,
547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision
whether to appoint counsel in a civil matter lies in the discretion of the district court. Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the
court that there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393
F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have
assisted [the prisoner] in presenting his strongest possible case, [as] the same could be said in
any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)).

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In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to
investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at
979). The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has
asserted a colorable claim against a named defendant; (2) the issues are not complex; and (3)
Plaintiff appears capable of adequately presenting facts and arguments.
IV. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety. Plaintiff is therefore required to show good cause why his Complaint (Doc. 1) should
not be dismissed for the reasons stated herein. The failure to file a timely, specific response
waives de novo review by the District Judge, see Thomas v. Arn, 474 U.S. 140, 148–53 (1985),
and also waives appellate review of both factual and legal questions. Makin v. Col. Dept. of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
March 10, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff’s Complaint (Doc. 1) should not be dismissed for the
reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (Doc. 3) is
denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 14th day of February, 2017.

s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge
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