Scott v. Saline County Sheriff's Department et al

Filing 4

NOTICE AND ORDER TO SHOW CAUSE ENTERED: On or before May 26, 2017, plaintiff shall submit an initial partial filing fee of $9.50 to the clerk of the court. Any objection to this order must be filed on or before the date payment is due. On or before May 26, 2017, plaintiff shall show cause to the Honorable Sam A. Crow why this matter should not be dismissed for failure to state a claim for relief. The failure to file a timely response may result in the dismissal of this action without additional prior notice to the plaintiff. Signed by Magistrate Judge David J. Waxse on 04/25/17. Mailed to pro se party Maurice Sabba Scott by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MAURICE SABBA SCOTT,
Plaintiff,
v.

CASE NO. 17-3064-SAC-DJW

SALINE COUNTY SHERIFF’S DEPARTMENT,
et al.,
Defendants.

NOTICE OF ORDER TO SHOW CAUSE
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff is a prisoner held in the Saline County Jail. He
proceeds pro se and seeks leave to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
Here, plaintiff’s average monthly deposit is $49.50, and the

average balance cannot be calculated from the ledger supplied. The
court therefore assesses an initial partial filing fee of $9.50,
twenty percent of the average monthly deposit, rounded to the lower
half dollar.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
praty proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To state a claim for relief under Section 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, 48-49 (1988)(citations omitted).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to

relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “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 Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombley and Erickson set out a new standard of review
for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See
Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” 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

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
Plaintiff sues the Saline County Sheriff and two captains
employed at the Saline County Jail1, alleging a violation of his rights
1

Although the complaint identifies the Saline Count Sheriff’s Department in the
caption, the body of the form complaint does not identify the department as a
defendant, nor does plaintiff identify any departmental action in the complaint.
The Court liberally construes the pro se pleading to allege only that the three

under the Fourth and Fourteenth Amendments. The complaint alleges that
on February 22, 2017, jail employees removed plaintiff’s shoes from
his property and delivered them to the state district court. In Count
I of the complaint, plaintiff alleges the shoes were given to the
district attorney; however, in Count II, he states that in a grievance
response, a jail employee stated that the “the court called for the
shoes” (Doc. #1, p. 4). It appears the shoes were offered as evidence
by the prosecutor in a jury trial in which plaintiff was found guilty
(Id., p. 1).
Because the shoes were delivered to the state trial court in
response to a court order and as part of a criminal proceeding, the
plaintiff’s claims concerning the production and retention of his
shoes as evidence should be addressed to that court by objection or
motion in the criminal case. See Thompson v. Larned State Hospital,
597 Fed.Appx. 548 (10th Cir. Mar. 3, 2015)(affirming dismissal of
action under Section 1983 where plaintiff challenged state hospital’s
release of medical records pursuant to subpoena from California
court). The plaintiff offers no authority that would impose Section
1983 liability upon jail employees who respond to a court order
directing the production of items held in the property of a jailed
criminal defendant.
Order to Show Cause
For the reasons set forth, the Court directs plaintiff to show
cause to the Honorable Sam A. Crow why this matter should not be
dismissed for failure to state a claim for relief. The failure to file
written, specific objections to this order waives de novo review by
the district judge, see Thomas v. Arn, 474 U.S. 140, 147-48 (1985)
individual defendants are employed by the Saline County Sheriff’s Department.

and appellate review of both factual and legal questions. Makin v.
Colorado Dept. of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS, THEREFORE, BY THE COURT ORDERED that on or before May 26,
2017, plaintiff shall submit an initial partial filing fee of $9.50
to the clerk of the court.2 Any objection to this order must be filed
on or before the date payment is due.
IT IS FURTHER ORDERED that on or before May 26, 2017, plaintiff
shall show cause to the Honorable Sam A. Crow why this matter should
not be dismissed for failure to state a claim for relief.
The failure to file a timely response may result in the dismissal
of this action without additional prior notice to the plaintiff.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 25th day of April, 2017, at Kansas City, Kansas.

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

2

Plaintiff will be required to pay the balance of the $350.00 filing fee in
installments calculated pursuant to 28 U.S.C. § 1915(b)(2).