Smith v. United States of America et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: On or before January 25, 2022, plaintiff shall show cause why this matter should not be dismissed. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by Senior U.S. District Judge Sam A. Crow on 01/11/22. Mailed to pro se party Nathan Smith by regular mail. (smnd)

Case 5:22-cv-03005-SAC Document 5 Filed 01/11/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NATHAN SMITH,
Plaintiff,
v.

CASE NO. 22-3005-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed by a detainee in
the Geary County Detention Center. The court construes the action
as a filing under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff proceeds pro se
and in forma pauperis.
Nature of the Complaint
Plaintiff alleges that between April 26, 2010, and January 17,
2020, he was subjected to torture while in federal custody. The
complaint contains two counts. In Count I, plaintiff alleges the
tort of outrage, physical torture, and gross misuse of restraints.
In Count II, he alleges mental torture, misuse of physical beatings
and segregation/isolation.
In pages attached to the complaint, plaintiff states that in
2011, he spent the summer in a cell with no mattress, clothing, or
reading material. He states that in 2012, he was forced to share a
cell with a mentally ill inmate and was sexually assaulted. He
states that staff placed a piece of metal in his personal property,
and that as a result he was transferred to USP-Lewisburg, PA. He
claims that he was physically assaulted by staff at USP-Lewisburg

Case 5:22-cv-03005-SAC Document 5 Filed 01/11/22 Page 2 of 4

and USP-Hazelton, West Virginia.
He seeks damages for injury to his thumb and for mental
anguish. However, he states that he filed a lawsuit in 2012 in the
U.S. District Court for the Middle District of Florida concerning
a broken thumb. That action was dismissed for failure to state a
claim for relief.
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).
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,

Case 5:22-cv-03005-SAC Document 5 Filed 01/11/22 Page 3 of 4

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). See Kay 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 plaintiff has not “nudged [the]
claims across the line from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citing Twombly, 550
U.S. at 1974).
Discussion
The court’s review of the complaint reveals that this
matter

is

not

properly

filed

in

the

District

of

Kansas.

The

complaint does not present any events that occurred in Kansas and
does not identify any of the defendants as a resident of Kansas.
Under 28 U.S.C. § 1391(b):

Case 5:22-cv-03005-SAC Document 5 Filed 01/11/22 Page 4 of 4

A civil action may be brought in –
(1)
(2)

a judicial district in which any defendant
resides, if all defendants are residents of the
State in which the district is located;
a judicial district in which a substantial part
of the events or omissions giving rise to the
claim occurred, or a substantial part of
property that is the subject of the action is
situated….

28 U.S.C. § 1391(b)(1)-(2).
Accordingly, venue is not proper in the District of Kansas.
Because the complaint identifies unrelated events that occurred in
different

correctional

plaintiff must present

institutions
his claims in

at

different

times,

separate actions

the

in the

districts where the events occurred.
The court therefore will direct plaintiff to show cause why
this matter should not be dismissed without prejudice for lack of
venue.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before
January 25, 2022, plaintiff shall show cause why this matter should
not be dismissed. The failure to file a timely response may result
in the dismissal of this matter without additional prior notice.
IT IS SO ORDERED.
DATED:

This 11th day of January, 2022, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
Senior U.S. District Judge