Hall (ID 57105) v. Fantroy et al

Filing 7

ORDER 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. Plaintiff's Motion for Discovery 3 is denied without prejudice. Signed by Magistrate Judge David J. Waxse on 06/08/17. Mailed to pro se party Delano E. Hall by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DELANO E. HALL,
Plaintiff,
v.

CASE NO. 17-3067-SAC-DJW

NANCY J. FANTROY,
AT&T/NCR/SYMBIOS,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Delano E. Hill 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
detained at the El Dorado Correctional Facility in El Dorado, Kansas. Plaintiff filed a Complaint
(Doc. 1), alleging the following.

Defendant Nancy Fantroy, a sales representative for

AT&T/NCR/Symbios, used the company name to set up a capital crime and insurance fraud.
The Defendant company was aware of the Defendant employee using her name and title to
perjure testimony on April 15, 2013. Plaintiff claims that Defendant Fantroy made a false report
of Plaintiff’s cellular device in an attempt to place Plaintiff at certain dwellings to make a false
report of a rape crime. Plaintiff’s claim at Count I alleges a false report claim and insurance
fraud. Plaintiff’s claim at Count II alleges a violation of the Electronic Communications Privacy
Act and identity theft. Plaintiff’s claim at Count III alleges identity theft.

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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).
III. DISCUSSION
A complaint brought under § 1983 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

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committed by a person acting under color of state law.” Bruner v. Baker, 506 F.3d 1021, 1025–
26 (10th Cir. 2007) (citation omitted). A defendant acts “under color of state law” when he
“exercises[s] power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988)
(citation omitted). Thus, it is of no consequence how discriminatory or wrongful the actions a
plaintiff may describe; merely private conduct does not satisfy the “under color of” element and
therefore no § 1983 liability exists. See Brentwood Acad. v. Tennessee Secondary Athletic Ass’n,
531 U.S. 288, 294–96 (2001). Plaintiff’s claims against the Defendants fail to show that any
Defendant was acting under color of state law.
The facts alleged in the Complaint also fail to state a plausible federal constitutional
violation. “The core inquiry under any § 1983 action, regardless of the analogous common law
tort, is whether the plaintiff has alleged an actionable constitutional violation.” Becker v. Kroll,
494 F.3d 904, 913 (10th Cir. 2007); see also Malek v Haun, 26 F.3d 1013, 1016 (10th Cir. 1994)
(“[A] violation of state law alone does not give rise to a federal cause of action under § 1983.”).
IV. Motion for Discovery
Plaintiff filed a Motion for Discovery (Doc. 3), seeking to subpoena the AT&T work
schedule for Defendant, testimony from a District Court case, and Plaintiff’s Sprint case file.
Discovery in this action shall not proceed and service shall not issue until the screening process
has been completed. Accordingly, the Court finds that Plaintiff’s motion is premature and denies
it at this time without prejudice.
V. 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

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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
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’s Motion for Discovery (Doc. 3) is denied
without prejudice.
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

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