Washburn (ID 82688) v. KAKE 12 News Team

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including August 18, 2017, to show cause to the Honorable Sam A. Crow why this matter should not be dismissed due to plaintiff's failure to exhaust administrative remedies. Pl aintiff's motion for leave to proceed in forma pauperis 2 is granted. Plaintiff remains obligated to pay the $350.00 filing fee. Plaintiff's motion to appoint counsel 3 is denied. Signed by Magistrate Judge David J. Waxse on 07/18/17. Mailed to pro se party Allen Dean Washburn by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALLEN DEAN WASHBURN,
Plaintiff,
v.

CASE NO. 17-3109-SAC-DJW

KAKE 12 NEWS TEAM,
Defendant.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, 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, the limited financial information provided shows that
plaintiff has no income and that his available balance is less than

$1.00. The court therefore does not impose an initial partial filing
fee but advises plaintiff that he remains obligated to pay the $350.00
filing fee.
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
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
The complaint alleges that a media news team in Wichita, Kansas,
violated plaintiff’s rights by making false claims in a story
concerning him. Plaintiff alleges damage to his reputation. As relief,
he seeks a retraction, an apology, and damages.
In a complaint filed under § 1983, the plaintiff must identify
“the violation of the 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.” Bruner v.
Baker, 506 F.3d 1021, 1025-26 (10th Cir. 2007)(citation omitted). A
defendant acts “under color of state law” when he “exercise[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).

Therefore, to present a viable claim under § 1983, a plaintiff
must allege facts that plausibly show that the conduct of the private
individual or entity allegedly causing a constitutional deprivation
is “fairly attributable to the state.” Scott v. Hern, 216 F.3d 897,
906 (10th Cir. 2000)(citations and internal quotation marks omitted).
Private conduct alone does not satisfy the requirement that the
defendant acted “under color of state law”, and when only private
conduct is alleged, there is no liability under § 1983. See Brentwood
Acad. v. Tennessee Secondary Athletic Ass’n, 531 U.S. 288, 294-96
(2001).
Plaintiff’s claims against the news team allege only private
conduct, and there is no showing that the defendant acted under color
of state law or that the conduct was attributable to the state.
Accordingly, this matter is subject to dismissal for failure to state
a claim for relief.
Plaintiff also moves for the appointment of counsel. As a party
in a civil action, he has no constitutional right to counsel. See
Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995). The court, in
its discretion, may appoint counsel for an indigent plaintiff, see
28 U.S.C. § 1915(e)(1), and must consider the merits of the claims,
the nature of the issues presented, the party’s ability to present
the claims, and the complexity of the legal issues involved. Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). Because the court
finds that plaintiff has not stated a claim for relief, the motion
will be denied.
Order to Show Cause
The court directs plaintiff to show cause to the Honorable Sam
A. Crow why this matter should not be dismissed due to the failure

to allege action under color of state law. The failure to file a
written, specific objection waives de novo review of the matter by
the District Judge, see Thomas v. Arn, 474 U.S. 140, 148-53 (1985)
and also waives appellate review of factual and legal issues. Makin
v. Col. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including August 18, 2017 to show cause to the Honorable Sam A.
Crow why this matter should not be dismissed due to plaintiff’s failure
to exhaust administrative remedies.
IT IS FURTHER ORDERED plaintiff’s motion for leave to proceed
in forma pauperis (Doc. #2) is granted. Plaintiff remains obligated
to pay the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel (Doc.
#3) is denied.
A copy of this order shall be transmitted to plaintiff.
IT IS SO ORDERED.
DATED:

This 18th day of July, 2017, at Kansas City, Kansas.

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