Flores v. Linn County Jail

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JOSEPH BRICE FLORES, Plaintiff, v. CASE NO. 20-3204-SAC LINN COUNTY JAIL, Defendant.

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE Plaintiff Joseph Brice Flores is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, 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 complaint under 42 U.S.C. § 1983. Plaintiff is housed at the Linn County Jail in Mound City, Kansas (“LCJ”). The Court granted Plaintiff leave to proceed in forma pauperis and assessed a $26.00 initial partial filing fee. (Doc. 3.) The initial partial filing fee was due on August 24, 2020, and has not been paid.

Plaintiff’s claims in his Complaint (Doc. 1) are based on his alleged rape, a slip and fall incident, the denial of healthcare for a back injury he received in the fall, and the denial of mental healthcare. Plaintiff seeks $3.5 million dollars in damages.

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 ‘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. Ct. at 1974).

III. DISCUSSION Plaintiff notes in his Complaint that he has a pending lawsuit in this Court. (Doc. 1, at 9.)

Plaintiff acknowledges that it is “against the Sheriff Kevin Friend for same things.” Id. On May 29, 2020, Plaintiff filed Flores v. Friend, Case No. 20-3148-SAC. In that case, Plaintiff claims he was raped at the LCJ, he was not able to report the assault through PREA, he was injured in a slip and fall in the shower, he was denied proper medical care, and he was exposed to black mold. Plaintiff filed the instant case on July 27, 2020. “[R]epetitious litigation of virtually identical causes of action may be dismissed under [28 U.S.C.] § 1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d 573, 574 (10th Cir. 1997) (quotation marks omitted) (first alteration in original) (affirming district court’s dismissal of suit where “duplicative of earlier action”). Plaintiff should show good cause why this case should not be dismissed as duplicative of Case No. 20-3148.

III. Response Required Plaintiff is required to show good cause why his Complaint should not be dismissed for the reasons stated herein. Failure to respond by the deadline may result in dismissal of this action without further notice.

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until September 14, 2020, 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 granted until September 14, 2020, in which to submit the $26.00 initial partial filing fee.

IT IS SO ORDERED.

Dated August 27, 2020, in Topeka, Kansas.

S/ Sam A. Crow SAM A. CROW SENIOR U. S. DISTRICT JUDGE