Hathorn v. Shipley

Filing 4

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until June 30, 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. Plain tiff is also granted until July 14, 2017, in which to file a complete and proper Amended Complaint to cure all the deficiencies. Signed by Magistrate Judge David J. Waxse on 06/08/17. Mailed to pro se party James A. Hathorn by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES A. HATHORN,
Plaintiff,
v.

CASE NO. 17-3018-SAC-DJW

MEAGAN SHIPLEY,
Defendant.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff James A. Hathorn 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. The Court
granted Plaintiff leave to proceed in forma pauperis. Plaintiff is currently detained in the
Douglas County Jail in Lawrence, Kansas. Plaintiff filed a Complaint (Doc. 1), alleging the
following. On December 23, 2015, Defendant Meagan Shipley, a law enforcement officer with
the Lawrence Police Department, struck Plaintiff’s car as he drove Eastbound on K-10 from
Eudora to Johnson County. Plaintiff claims that he was “blinded by bright head lights on the rear
of [him] when suddenly [he] was struck by the same vehicle with the headlights on by a pitmanuevered fashion.” (Doc. 1, at 2.) Plaintiff alleges that the impact of the hit turned his car
onto the median travelling in the opposite Westbound direction, causing a semi-truck to collide
with the passenger side of Plaintiff’s vehicle and causing Plaintiff to suffer severe injuries.
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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
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

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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
The claim alleged in Plaintiff’s Complaint is subject to dismissal because Plaintiff has not
adequately alleged a federal constitutional violation. His claim suggests that Defendant Shipley
was negligent. Violations of state law are not sufficient grounds for relief in federal court under
42 U.S.C. § 1983. In a § 1983 action, the complaint must specify “the violation of a right
secured by the Constitution and laws of the United States, and . . . that the alleged deprivation
was committed by a person acting under color of state law.” Bruner v. Baker, 506 F.3d 1021,
1025–26 (10th Cir. 2007). “[A] violation of state law alone does not give rise to a federal cause
of action under § 1983.” Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994) (citation omitted).
Plaintiff makes no reference to any federal constitutional provision or federal law in the alleged
claim. He may believe that the U.S. Constitution was violated but simply failed to specify the
constitutional provision. However, the Court is not free to “construct a legal theory on a
plaintiff’s behalf.”
IV. Response and/or Amended Complaint Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety for failure to state a claim. 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).
Plaintiff is also given the opportunity to file a complete and proper Amended Complaint
upon court-approved forms that cures all the deficiencies discussed herein.1 Plaintiff is given
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In order to add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete
Amended Complaint. See Fed. R. Civ. P. 15. An Amended Complaint is not simply an addendum to the original
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time to file a complete and proper Amended Complaint in which he (1) alleges sufficient facts to
state a claim for a federal constitutional violation and show a cause of action in federal court, and
(2) alleges sufficient facts to show personal participation by each named defendant. If Plaintiff
does not file an Amended Complaint within the prescribed time that cures all the deficiencies
discussed herein, this matter will be decided based upon the current deficient Complaint.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
June 30, 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 is also granted until July 14, 2017, in which
to file a complete and proper Amended Complaint to cure all the deficiencies discussed herein.
The clerk is directed to send § 1983 forms and instructions to plaintiff.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 8th day of June, 2017.

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

complaint, and instead completely supersedes it. Therefore, any claims or allegations not included in the Amended
Complaint are no longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and
the Amended Complaint must contain all allegations and claims that a plaintiff intends to pursue in the action,
including those to be retained from the original complaint. Plaintiff must write the number of this case (17-3018SAC-DJW) at the top of the first page of his Amended Complaint and he must name every defendant in the caption
of the Amended Complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the
body of the complaint, where he must allege facts describing the unconstitutional acts taken by each defendant
including dates, locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal
constitutional violation.
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