Walle v. Main
NOTICE AND ORDER TO SHOW CAUSE ENTERED: On or before November 8, 2019, plaintiff shall 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 10/08/19. Mailed to pro se party Michael Walle by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 19-3185-SAC
OFFICER MAIN #750,
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 in forma
Nature of the Complaint
Plaintiff, a prisoner at the Saline County Jail, brings this
action against a transport officer who took him to court in Saline
County from the Ottawa County Jail. During the transfer, plaintiff
was placed in a holding room while wearing restraints. Another inmate
in the room who was not in restraints struck plaintiff in the face.
Plaintiff alleges that this conduct was gross negligence; he seeks
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 Twombly 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 Court liberally construes petitioner’s claim to allege a
failure to protect under the Eighth Amendment, which guarantees a
prisoner the right to be free from cruel and unusual punishment. See
Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)(discussing duty to
protect prisoners from violence by other prisoners).
A prison official violates the Eighth Amendment only when two
components are met: first, an objective component, showing the
prisoner plaintiff was held under conditions posing a substantial risk
of serious harm, and second, a subjective component, showing that the
official acted with obduracy and wantonness, not inadvertence or error
in good faith.
Because the “Eighth Amendment protects inmates from the
‘infliction of punishment’ - it does not give rise to claims sounding
in negligence or medical malpractice.” Sherman v. Klenke, 653 F. App’x
580, 586 (10th Cir. 2016)(quoting Farmer v. Brennan, 511 U.S. 825, 838
(1994)). Here, plaintiff’s allegations do not plausibly assert that
the defendant officer acted with “obduracy and wantonness.” Rather,
plaintiff presents a claim of negligence, which is actionable in state
court, rather than a claim of conduct prohibited by the Cruel and
Unusual Punishments Clause. See, e.g., Harris v. Werholtz, 260 P.2d
101 (Table), 2011 WL 4440314 (Kan. App. 2011).
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 under § 1983.1 The failure to file a timely response
may result in the dismissal of this matter without additional notice.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before November
8, 2019, plaintiff shall show cause why this matter should not be
dismissed for failure to state a claim for relief.
IT IS SO ORDERED.
This 8th day of October, 2019, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
Such a dismissal will not prevent plaintiff proceeding in state court. The Court
offers no opinion on the merits of such a claim.
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