Johnson v. Arnold et al

Filing 7

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's initial partial filing fee is waived. Plaintiff is granted until November 12, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed. Plaintiff is also granted until November 12, 2018, in which to file a complete and proper amended complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 10/12/18. Mailed to pro se party Anthony K. Johnson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY K. JOHNSON,
Plaintiff,
v.

CASE NO. 18-3079-SAC

CLINT ARNOLD, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Anthony K. Johnson., an inmate at the Riley County Jail in Manhattan, Kansas,
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted his motion
to proceed in forma pauperis and assessed an initial partial filing fee of $4.00. Plaintiff filed a
response (Doc. 6), indicating that he does not have funds available to pay the partial fee. The
Court will grant a waiver of the initial partial filing fee. For the reasons discussed below, Plaintiff
is ordered to show cause why his Complaint should not be dismissed.
I. Nature of the Matter before the Court
Plaintiff’s allegations in his Complaint involve his state criminal proceedings. See Case
No. 2017-cr-000087 in Geary County District Court. Plaintiff alleges in his Complaint (Doc. 1)
that on January 23, 2017, he was “trailed” by Officer Clint Arnold in Geary County, Kansas.
Plaintiff alleges that he was “pulled over apparently for no good reason,” and was jailed without
receiving a ticket. Plaintiff alleges that he went to trial and the case was dismissed.

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Plaintiff names as Defendants Clint Arnold and the Geary County Sheriff’s Department.
He seeks repayment of his bond money, and payment for loss of his time and wages.
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

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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
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
1. Improper Defendant
Plaintiff names the Geary County Sheriff’s Department as a defendant. To impose § 1983
liability on the county and its officials for acts taken by its employee, plaintiff must show that the
employee committed a constitutional violation and that a county policy or custom was “the moving
force” behind the constitutional violation. Myers v. Oklahoma Cty. Bd. of Cty. Comm’rs, 151 F.3d
1313, 1318 (10th Cir. 1998) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 695 (1978)). The
Supreme Court explained that in Monell they decided “a municipality can be found liable under
§ 1983 only where the municipality itself causes the constitutional violation at issue,” and “there
are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability
under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385–86 (1989). Plaintiff has pointed
to no policy or deficiency in the training program used by the Sheriff or Geary County and no
causal link between any such inadequacy and any allegedly unconstitutional acts of the officer.
Defendant Geary County Sheriff’s Department is subject to dismissal from this action.
2. Personal Participation/Constitutional Violation
An essential element of a civil rights claim against an individual is that person’s direct
personal participation in the acts or inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Trujillo, 465 F.3d at 1227; Foote v. Spiegel, 118 F.3d 1416,
1423–24 (10th Cir. 1997). Conclusory allegations of involvement are not sufficient. See Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). As a result, a plaintiff is required to name each defendant not
only in the caption of the complaint, but again in the body of the complaint and to include in the
body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional
rights.

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Plaintiff alleges that Officer Arnold pulled him over “for no apparent reason.” This bare,
conclusory allegation fails to state a constitutional violation. Plaintiff has not identified particular
acts or omissions by Defendant Arnold. Plaintiff must explain what each defendant did to him,
when the defendant did it, how the defendant’s actions harmed him, and what specific legal right
he believes the defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007). Since he has failed to do this, Plaintiff has not adequately pled a cause of
action under § 1983 against Officer Arnold.
Plaintiff has failed to allege a constitutional violation, and the Court will not supply
additional factual allegations to round out Plaintiff’s Complaint or construct a legal theory on his
behalf. Plaintiff alleges that he went to trial and his state criminal case was dismissed. An online
Kansas District Court Records Search indicates that Plaintiff’s state court criminal proceedings
were dismissed without prejudice on July 21, 2017.1 Although malicious prosecution claims are
not confined to the official deciding to prosecute, Plaintiff has failed to allege how Defendant
Arnold participated in Plaintiff’s arrest and/or prosecution. See Sanchez v. Hartley, 810 F.3d 750,
758 (10th Cir. 2016); see also Stonecipher v. Valles, 759 F.3d 1134, 1147 (10th Cir. 2014) (“Of
course, the fact that a government lawyer makes the final decision to prosecute does not
automatically immunize an officer from liability for malicious prosecution.”). There is no
allegation that Defendant Arnold was the arresting officer or that he prepared an affidavit in
support of an arrest warrant. Cf. Sanchez, 810 F.3d at 759 (holding that detectives and investigator
should have known that knowing or reckless use of a false confession would violate the Fourth
Amendment); Pierce v. Gilchrist, 359 F.3d 1279, 1293 (10th Cir. 2004) (holding that malicious
prosecution theory would lie against a forensic analyst).

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 See No. 2017-cr-000087, Geary County, Kansas.

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If Plaintiff is relying on the participation by Defendant Arnold in his confinement, he must
allege a “misuse of power, possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” Callaway v. Werholtz, No. 12-2527-EFM,
2013 WL 2297139, at *3 (D. Kan. May 24, 2013) (defining “acting under color of state law” as
required by § 1983). Plaintiff has not alleged a misuse of power. Furthermore, “[o]fficials who
act pursuant to a ‘facially valid court order’ enjoy quasi-judicial immunity from suit under § 1983.”
Callaway, 2013 WL 2297139, at *4 (citing Turney v. O’Toole, 898 F.2d 1470, 1472 (10th Cir.
1990) (holding that state officials were absolutely immune from § 1983 liability for confining the
plaintiff in a state hospital pursuant to a judicial order)).
Furthermore, for a malicious prosecution claim, Plaintiff has the burden to show that the
termination of his underlying criminal case was favorable. Cordova v. City of Albuquerque, 816
F.3d 645, 650 (10th Cir. 2016) (citing Wilkins, 528 F.3d at 803). “[T]he plaintiff must show more
than just the withdrawal or vacating of criminal charges—the plaintiff must demonstrate that the
criminal proceedings were dismissed for reasons indicative of innocence, and not because of an
agreement of compromise, an extension of clemency, or technical grounds having little or no
relation to the accused’s guilt.” M.G. v. Young, 826 F.3d 1259, 1262 (10th Cir. 2016) (citation
omitted). The mere fact that a prosecutor chooses to abandon a case is insufficient to show a
favorable termination. Cordova, 816 F.3d at 651 (citation omitted); see also Wilkins, 528 F.3d at
802–03 (finding that abandonment of the proceedings is ordinarily insufficient to constitute a
favorable termination if “the prosecution [is] abandoned pursuant to an agreement of compromise
with the accused; . . . because of misconduct on the part of the accused . . . ; [or] out of mercy
requested or accepted by the accused.”) (citations omitted). When it is unclear whether or not the
termination of the case indicates innocence, courts “look to the stated reasons for the dismissal as

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well as to the circumstances surrounding it” and determine “whether the failure to proceed implies
a lack of reasonable grounds for the prosecution.” Cordova, 816 F.3d at 651 (citation and
quotation omitted). “[T]he abandonment of prosecution that ‘does not touch the merits . . . leaves
the accused without a favorable termination.’” Id. (citation omitted). A dismissal of charges does
not “create a presumption of innocence or shift the burden of proving the element of favorable
termination to the defendant.” Id. at 654. Plaintiff’s state court criminal proceeding was dismissed
without prejudice and he has not shown that it was dismissed for reasons indicative of innocence.
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein. 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.2 Plaintiff is
given time to file a complete and proper amended complaint in which he (1) shows he has
exhausted administrative remedies for all claims alleged; (2) raises only properly joined claims
and defendants; (3) alleges sufficient facts to state a claim for a federal constitutional violation and
show a cause of action in federal court; and (4) alleges sufficient facts to show personal
participation by each named defendant.

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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 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 (18-3079-SAC) 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 amended 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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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 THAT Plaintiff’s initial partial filing fee is waived.
IT IS FURTHER ORDERED that Plaintiff is granted until November 12, 2018, in which
to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why
Plaintiff’s Complaint should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until November 12, 2018, 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 Topeka, Kansas, on this 12th day of October, 2018.

s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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