Thomas v. Soldan et al
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including April 6, 2018, to show cause why this matter should not be dismissed for failure to state a claim for relief. Signed by U.S. Senior District Judge Sam A. Crow on 03/06/18. Mailed to pro se party Darris Colton Thomas, Jr. by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARRIS COLTON THOMAS, JR.,
CASE NO. 18-3034-SAC
ROGER SOLDAN, et al.,
NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, 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).
Because the financial records show that plaintiff has no
resources in his institutional account, the Court grants plaintiff
leave to proceed in forma pauperis. Plaintiff remains obligated to
pay the $350.00 filing fee in installments, as funds become available.
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).
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
conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
The complaint identifies as defendants two officers employed by
Saline County, Sheriff Soldan and Undersheriff Melander. Plaintiff
broadly claims violations of his rights at the jail, stating that he
is subjected to excessive bail and fines, that inmates are charged
for indigent supplies, that the day room is not cleaned by a porter
every day, that officers do not wear hair coverings and gloves during
meal service in segregation, that there is no law library or librarian,
that the disciplinary board is corrupt, and that officers seized
property during a search of his cell. (Docs. #1 and #3). He seeks
The Court has carefully reviewed the complaint and has identified
First, plaintiff makes broad allegations of fact and does not
identify any acts or omissions by a named defendant. He brings this
matter under 42 U.S.C. § 1983 and “[i]ndividual liability under § 1983
must be based on [the defendant’s] personal involvement in the alleged
constitutional violation.” Schneider v. City of Grand Junction Police
Dept., 717 F.3d 760, 768 (10th Cir. 2013)(citation omitted).
Next, plaintiff’s claim of excessive bail arises from the
criminal proceedings against him and cannot be addressed in this civil
action. His allegation of excessive fines is not specific, and the
complaint does not identify what those fines are, when they were
imposed, and by whom.
Because plaintiff appears to be in pretrial confinement, the
Court analyzes his claims concerning the conditions of confinement
at the jail under the Fourteenth Amendment. A pretrial detainee has
not been adjudicated of guilt, and the state “may subject him to the
restrictions and conditions of the detention facility… so long as
those conditions and restrictions do not amount to punishment, or
otherwise violate the Constitution.” Bell v. Wolfish, 441 U.S. 520,
In the Tenth Circuit, a pretrial detainee’s due process rights
are essentially equivalent to those of convicted prisoner:
“[p]retrial detainees are protected under the Due Process Clause
rather than the Eighth Amendment. In determining whether
[plaintiff’s] rights were violated, however, we apply an analysis
identical to that applied in Eighth Amendment cases brought pursuant
to §1983.” Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir.
1999)(citing Bell v. Wolfish, 441 U.S. at 535).
To show a constitutional violation, plaintiff must show that the
conditions he challenges are objectively “sufficiently serious” to
deny him “the minimal civilized measure of life’s necessities”, Wilson
v. Seiter, 501 U.S. 294, 298 (1991) and that the defendant officials
acted with “deliberate indifference”, which, in turn, requires a
showing that the officers knew of and disregarded a significant risk
of serious harm to the prisoner. Farmer v. Brennan, 511 U.S. 825, 834
Because the Eighth Amendment “does not mandate comfortable
prisons”, the conditions of confinement may be “restrictive and even
harsh.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Here, plaintiff’s
allegations concerning indigent supplies, cleaning services, and cell
searches do not present claims that are sufficient to state a claim
for relief. Plaintiff presents no specific claim that is subjectively
serious in terms of his daily life at the jail, nor does he plausibly
allege any act or omission that might be viewed as deliberate
His claim concerning the lack of a law library at the jail
likewise does not state a claim for relief. While a prisoner has a
fundamental right of access to the courts, Bounds v. Smith, 430 U.S.
817, 821 (1977), to state a violation of that right, a prisoner must
show actual injury “that is, that the prisoner was frustrated or
impeded in his efforts to pursue a nonfrivolous legal claim concerning
his conviction and or his conditions of confinement.” Gee v. Pacheco,
627 F.3d 1178, 1191 (10th Cir. 2010)(citation omitted).
Here, it appears that plaintiff has counsel in his criminal case, and
he has identified no actual injury arising from a viable civil claim.
Finally, plaintiff’s claim of lost property incident to a search
of his cell does not state a claim for relief1. The U.S. Supreme Court
has held that “an unauthorized intentional deprivation of
property…does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth Amendment
if a meaningful postdeprivation remedy for the loss is available.”
Hudson v. Palmer, 468 U.S. 517, 533 (1984). The Hudson Court determined
that a prison grievance procedure can be an adequate post-deprivation
remedy for an alleged loss of property. Id. at 536 n. 15.
Although the Court does not find on the present record that the
property loss alleged by plaintiff was an unauthorized deprivation
of property, it appears clear that the grievance procedure afforded
plaintiff a postdeprivation remedy.
Order to Show Cause
For the reasons set forth, the Court directs plaintiff to show
cause 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 matter without additional prior notice.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Collection
action shall commence under 28 U.S.C. § 1915(b)(2) and shall continue
In addition, plaintiff identifies no personal participation by a named defendant
in the taking of his property.
until plaintiff satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff is granted to and including April
6, 2018, to show cause why this matter should not be dismissed for
failure to state a claim for relief.
IT IS SO ORDERED.
This 6th day of March, 2018, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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