McNeese v. Anderson et al

Filing 5

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: The Court provisionally grants Plaintiff leave to proceed in forma pauperis. Plaintiff is granted until October 24, 2024, in which to submit the financial information required to support his motion for l eave to proceed in formal pauperis. Failure to comply by the deadline may result in dismissal of this action without further notice for failure to comply with this Court order. Plaintiff is granted until October 24, 2024, in which to show good caus e, in writing to the undersigned, why Plaintiff's Complaint should not be dismissed for the reasons stated in this order. Plaintiff is also granted until October 24, 2024, in which to file a complete and proper amended complaint to cure all the deficiencies discussed in this order. The Clerk is directed to send § 1983 forms and instructions to Plaintiff. Signed by District Judge John W. Lungstrum on 9/25/2024. Mailed to pro se party James W. McNeese by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES W. MCNEESE,
Plaintiff,
v.

CASE NO. 24-3153-JWL

(FNU) ANDERSON, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff James W. McNeese is hereby required to show good cause, in writing to the
undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s
Complaint that are discussed herein. Plaintiff is also given the opportunity to file an amended
complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is in
custody at the Sedgwick County Jail in Wichita, Kansas (“SCJ”). The Court provisionally grants
Plaintiff leave to proceed in forma pauperis.
Plaintiff alleges that on January 15, 2024, “the fellow officer on 3rd shift while doing
rounds comes in [Plaintiff’s] room in section B and injected a foreign object.” (Doc. 3, at 3.)
Plaintiff alleges that this violated his First and Eighth Amendment rights. Id. Plaintiff also states
that he “asked for a[n] MRI and they had refused it.” Id. at 5.
Plaintiff names as defendants: (fnu) Anderson, SCJ Official; and Barbie (lnu), SCJ Med
Passer. For relief, Plaintiff seeks to have his state criminal case dismissed, and “to be provided
with a[n] outside private doctor to examine [him] to follow thr[ough] with a[n] MRI.” Id. at 5.
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In Plaintiff’s original complaint, which was not on the Court-approved form, he indicated
that he was injected with a “foreign object” for medical treatment, and he was seeking to be seen
at an outside hospital to get the object removed. (Doc. 1, at 3–5.) He states that he is seeking an
MRI to have the object removed. Id. at 5.
II. Statutory Screening
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,

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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
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.

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Ct. at 1974).
III. DISCUSSION
1. Habeas Nature of Claims
Plaintiff seeks to have his state criminal case dismissed. “A prisoner may not seek
release or dismissal of criminal charges as a remedy in a civil rights action; the proper action to
seek release from custody is a habeas corpus petition rather than a civil rights action.” Ortberg
v. Groves, 2020 WL 1433483, at *3 (D. Kan. 2020). “[A] § 1983 action is a proper remedy for
a state prisoner who is making a constitutional challenge to the conditions of his prison life, but
not to the fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)
(emphasis added). When the legality of a confinement is challenged so that the remedy would be
release or a speedier release, the case must be filed as a habeas corpus proceeding rather than
under 42 U.S.C. § 1983, and the plaintiff must comply with the exhaustion of state court
remedies requirement. Heck v. Humphrey, 512 U.S. 477, 482 (1994); see also Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (exhaustion of state court remedies is required by
prisoner seeking habeas corpus relief).
2. Personal Participation
Plaintiff has failed to allege how each defendant personally participated in the deprivation
of his constitutional rights. 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, 165–66 (1985); Henry v. Storey, 658 F.3d 1235,
1241 (10th Cir. 2011) (“But § 1983 imposes liability for a defendant’s own actions—personal
participation in the specific constitutional violation complained of is essential.”) (citing Foote v.
Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997) (“Individual liability under § 1983 must be

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based on personal involvement in the alleged constitutional violation.”) (citation omitted));
Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under
§ 1983, a defendant’s direct personal responsibility for the claimed deprivation . . . must be
established.”) (emphasis added) (citation omitted)).
Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.”). 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.
3. Failure to State a Claim
Plaintiff alleges that he was injected with a foreign object, but fails to provide any factual
support regarding the allegation. He does not give any indication whether or not he was seeking
medication, who injected him, what relief he sought before or after the alleged injection, or why
he believes an MRI is necessary to remove whatever was allegedly injected. A pro se litigant’s
conclusory allegations without supporting factual averments are insufficient to state a claim upon
which relief can be based. The Court will grant Plaintiff an opportunity to file an amended
complaint.
4. Motion for Leave to Proceed in Forma Pauperis
The Court provisionally grants Plaintiff leave to proceed in forma pauperis. Plaintiff
must submit his required financial information to support his motion for leave to proceed in
forma pauperis. See 28 U.S.C. § 1915(a)(2) (A prisoner seeking to bring a civil action without

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prepayment of fees shall submit a certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing
of the complaint). Plaintiff is granted until October 24, 2024, in which to submit the financial
information required to support his motion for leave to proceed in formal pauperis. Failure to
comply by the deadline may result in dismissal of this action without further notice for failure to
comply with this Court order.
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why Plaintiff’s 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. 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 (24-3153-JWL) at the top of the first page of
the amended complaint and 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 Plaintiff 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. Plaintiff is given time to file a

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complete and proper amended complaint in which Plaintiff (1) raises only properly joined claims
and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation
and show a cause of action in federal court; and (3) alleges sufficient facts to show personal
participation by each named defendant. If Plaintiff does not file an amended complaint within
the prescribed time that cures all the deficiencies discussed herein, this matter may be dismissed
without further notice.
IT IS THEREFORE ORDERED BY THE COURT that the Court provisionally grants
Plaintiff leave to proceed in forma pauperis. Plaintiff is granted until October 24, 2024, in
which to submit the financial information required to support his motion for leave to proceed in
formal pauperis. Failure to comply by the deadline may result in dismissal of this action without
further notice for failure to comply with this Court order.
IT IS FURTHER ORDERED that Plaintiff is granted until October 24, 2024, in which
to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until October 24, 2024, 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 September 25, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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