Kennemore v. Kansas, State of et al

Filing 10

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until December 20, 2024, in which to show good cause, in writing, why her Complaint should not be dismissed. Signed by District Judge John W. Lungstrum on 11/22/24. Mailed to pro se party Annalee Michaela Kennemore by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANNALEE MICHAELA KENNEMORE,
Plaintiff,
v.

CASE NO. 24-3174-JWL

STATE OF KANSAS, et. al,
Defendants.

MEMORANDUM AND ORDER
TO SHOW CAUSE
Plaintiff Annalee Michaela Kennemore is hereby required to show good cause, in writing,
why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are
discussed herein.
1. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. She is incarcerated
at the Johnson County Adult Residential Therapeutic Community in New Century, Kansas.
Plaintiff has been granted leave to proceed in forma pauperis. (See Doc. 9.)
Plaintiff alleges that she received inadequate medical care at the Johnson County Adult
Detention Center (“JCADC”) in February of 2022. According to the Complaint, Plaintiff was six
weeks pregnant upon incarceration. (Complaint, Doc. 1, at 6.) One night, she woke up in severe
pain. Id. She went to use the bathroom and passed out on her way back to her cell. Id. Another
inmate pressed the emergency call button. Id. Officers arrived and told Plaintiff to lie down on
her bunk. Id. After about 25 minutes, she had to use the bathroom again and again passed out
trying to return to her cell. Id. Officers responded and alerted the nurse on duty. Id. The nurse
1

arrived and checked Plaintiff’s vital signs. Id. Plaintiff was put in a wheelchair and taken to
Medical. Id. She was given something to drink for dehydration but was unable to keep it down.
Id. About 20 minutes later, after signing a waiver stating that she would be charged with a crime
if she was faking her symptoms, Plaintiff was taken by ambulance to the hospital where she
underwent emergency surgery. Id. at 6-7. The next day she was informed that she had an ectopic
pregnancy, almost died from blood loss, and lost the child. Id. at 7.
Plaintiff names as defendants the State of Kansas, an unnamed correctional officer, and an
unnamed nurse at JCADC. She seeks financial compensation. Id. at 5.
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).
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,

2

1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 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.

3

Ct. at 1974).
III. DISCUSSION
The statute of limitations applicable to § 1983 actions is determined from looking at the
appropriate state statute of limitations and tolling principles. See Hardin v. Straub, 490 U.S. 536,
539 (1989).

“The forum state’s statute of limitations for personal injury actions governs civil

rights claims under both 42 U.S.C. § 1981 and § 1983. . . . In Kansas, that is the two-year statute
of limitations in Kan. Stat. Ann. § 60–513(a).” Brown v. Unified Sch. Dist. 501, Topeka Pub. Sch.,
465 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted).
While state law governs the length of the limitations period and tolling issues, “the accrual
date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S. 384, 388
(2007). Under federal law, the claim accrues “when the plaintiff has a complete and present cause
of action.” Id. (internal quotation marks and citation omitted). In other words, “[a] § 1983 action
accrues when facts that would support a cause of action are or should be apparent.” Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks and citation omitted),
cert. denied 549 U.S. 1059 (2006). A district court may dismiss a complaint filed by an indigent
plaintiff if it is patently clear from the allegations as tendered that the action is barred by the statute
of limitations. Id. at 1258–59; see also Jones v. Bock, 549 U.S. 199, 214 (2007); Hawkins v.
Lemons, No. 09-3116-SAC, 2009 WL 2475130, at *2 (D. Kan. Aug. 12, 2009).
It plainly appears from the face of the Complaint that Plaintiff’s claims are subject to
dismissal as barred by the applicable two-year statute of limitations. Plaintiff’s Complaint was
filed on October 2, 2024. Plaintiff alleges that the events forming the basis of her Complaint
occurred in February of 2022. It thus appears that any events or acts of the defendants taken in
connection with Plaintiff’s claims took place more than two years prior to the filing of Plaintiff’s

4

Complaint and are time-barred. See Fratus v. Deland, 49 F.3d 673, 674–75 (10th Cir. 1995)
(district court may consider affirmative defenses sua sponte when the defense is obvious from the
face of the complaint and no further factual record is required to be developed). Plaintiff has not
alleged facts suggesting that she would be entitled to statutory or equitable tolling. Plaintiff should
show good cause why her Complaint should not be dismissed as barred by the applicable statute
of limitations.
The Court notes that in addition to Plaintiff’s claims being untimely, she names an
improper defendant. Plaintiff names the State of Kansas as a defendant. The State of Kansas is
absolutely immune to suit for money damages under the Eleventh Amendment. Furthermore, the
State is not a “person” that Congress made amenable to suit for damages under § 1983. Howlett
v. Rose, 496 U.S. 356, 365 (1990); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 64,
71 (1989) (“Neither a State nor its officials acting in their official capacities are ‘persons’ under §
1983.”).
IV. Response Required
Plaintiff is required to show good cause why her Complaint should not be dismissed as
barred by the statute of limitations. Failure to respond by the deadline may result in dismissal of
this action without further notice for failure to state a claim.1

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
December 20, 2024, in which to show good cause, in writing, why her Complaint should not be
dismissed for the reasons stated herein.

1

A dismissal as time-barred is for failure to state a claim. Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir.
2011).

5

IT IS SO ORDERED.
Dated November 22, 2024, in Kansas City, Kansas.

S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

6