Curtis D. Clay v. Sam Cline, et al.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

CURTIS D. CLAY, Plaintiff, v. CASE NO. 26-3082-JWL SAM CLINE, et al., Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE Plaintiff Curtis D. Clay 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.

I. Nature of the Matter before the Court Plaintiff is a state prisoner confined at the El Dorado Correctional Facility (“EDCF”) in El Dorado, Kansas. He proceeds pro se. When Plaintiff began this case, he submitted a motion for leave to proceed in forma pauperis. (Doc. 2.) The motion was not on the court-approved form and did not include the required financial information, see 28 U.S.C. § 1915(a)(2), so the Court issued a notice of deficiency. (Doc. 4.) On April 15, 2026, Plaintiff submitted a motion on the correct form but did not provide his inmate account statement. (Doc. 5.) The Court will provisionally grant Plaintiff leave to proceed in forma pauperis. Plaintiff must, however, continue his attempts to obtain an account statement for the appropriate six-month period and he must submit the proper account statement as soon as he is able to do so, at which time an initial partial filing fee may be calculated and assessed.

Plaintiff alleges that he was provided with inadequate medical care on June 19, 2017, at the Lansing Correctional Facility (“LCF”) in Lansing, Kansas. On that date, Plaintiff suffered a sustained erection that left him in excruciating pain for 14 hours. LCF staff members behaved unprofessionally, delaying treatment. When a doctor was consulted via computer, he said that the Risperdal that Plaintiff was prescribed was the problem. Plaintiff alleges the doctor said that Risperdal was a “retired” medication that he should not have been prescribed. Plaintiff was given an ice pack and told to return if the pain worsened. Plaintiff repeatedly asked to return to the infirmary but staff refused to take him back for almost 10 hours. Eventually, he was taken to the University of Kansas Medical Center where surgery was performed. Plaintiff was directed to return for follow-up care, but no follow-up occurred.

Plaintiff asserts violation of his rights under the Eighth Amendment, as well as claims for negligence and attempted murder. Plaintiff names the following defendants: Sam Cline, Warden of LCF; Linda Winklebauer, Deputy Warden; Sergeant Fave; David Howard; Corizon Health; Crystal Howell; and Dr. Snow, KU Medical. Plaintiff seeks money damages of $2 million. (Doc.

1-1, at 1.)

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 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). Based on Plaintiff’s allegations, his cause of action accrued when the incident occurred in 2017.

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). “While the statute of limitations is an affirmative defense, when the dates given in the complaint make clear that the right sued upon has been extinguished, the plaintiff has the burden of establishing a factual basis for tolling the statute.”

Cash v. City of Durant, 2024 WL 1573947, at *3 (10th Cir. 2024) (unpublished) (citing Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980)).

State law also governs tolling issues for § 1983 actions. See Hardin v. Straub, 490 U.S. 536, 539 (1989); Roberts v. Barreras, 109 F. App’x 224, n.1 (10th Cir. 2004) (citation omitted).

Kansas recognizes the doctrine of equitable tolling. Matter of Bell, 529 P.3d 153, 157 (Kan. 2023).

The Kansas Supreme Court (“KSC”) explained in Bell that “[u]nder certain circumstances, ‘equitable estoppel can be applied to bar a party from relying on the defense of the statute of limitations.’” Bell, 539 P.3d at 157 (quoting Rockers v. Kansas Turnpike Authority, 991 P.2d 889 (1999). The burden is on the party claiming application of equitable estoppel. Id. That party must show that another party induced it to believe certain facts existed, by action or silence; it rightfully relied and acted on such belief; and it would be prejudiced if the other party were allowed to deny the existence of such facts. Id. The KSC also noted that equitable tolling under federal law requires a plaintiff to show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. (quoting Holland v. Florida, 560 U.S. 631, 645-46 (2010)). The KSC then applied both tests to the question of whether equitable tolling applied to toll the statute of limitations in a state wrongful conviction action. Id. at 154.

Plaintiff has not shown that Defendants affirmatively induced him into delaying his filing of this civil rights action or that despite pursuing his rights diligently, some “extraordinary circumstances” prevented the timely filing. Dartez v. Peters, Case No. 15-3255-EFM-DJW, 2018 WL 1138282, at *6 (D. Kan. March 2, 2018) (citation omitted). Extraordinary circumstances that could warrant equitable tolling include “when the defendant's conduct rises to the level of active deception; where a plaintiff has been lulled into inaction by a defendant, and likewise, if a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her rights.” Farhat v. United States, No. CIV-19-401-SPS, 2020 WL 5751618, at *4 (E.D. Okla. Sept.

25, 2020) (quoting Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1246 (10th Cir. 2012); United States v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001)).

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 filed his action on April 9, 2026, based on events occurring in 2017. 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 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).

IV. Motion for Appointment of Counsel (Doc. 3) Plaintiff seeks the appointment of counsel to assist him in this case. The Court has considered Plaintiff’s motion. There is no constitutional right to appointment of counsel in a civil case. Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). “Rather, a court has discretion to request an attorney to represent a litigant who is proceeding in forma pauperis” in a civil case.

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (emphasis added) (citing 28 U.S.C. § 1915(e)(1)). In other words, if this motion is granted, it means only that the Court will request that an attorney volunteer to be appointed to represent Plaintiff at no cost to Plaintiff. The Court cannot guarantee that an attorney will volunteer. See Rachel v. Troutt, 820 F.3d 390, 396 (10th Cir. 2016) (“Courts are not authorized to appoint counsel in § 1983 cases; instead, courts can only ‘request’ an attorney to take a case.”).

The decision whether to appoint counsel—meaning to request counsel to provide representation at no cost to Plaintiff—in a civil matter lies in the discretion of the district court.

Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant appointment of counsel. Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the prisoner] in presenting his strongest possible case, [as] the same could be said in any case.”

Steffey, 461 F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).

In deciding whether to request volunteer counsel for Plaintiff, the Court has considered “the merits of the prisoner’s claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to investigate the facts and present his claims.” Rucks, 57 F.3d at 979; Hill, 393 F.3d at 1115. The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a colorable claim against a named defendant; (2) the issues are not yet clarified and may not be complex; and (3) Plaintiff appears capable of adequately presenting facts and arguments. Thus, the Court will deny the motion without prejudice to refiling if this matter survives screening.

V. Response Required This case is subject to dismissal. Plaintiff is required to show good cause why his 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.

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motions for leave to proceed in forma pauperis (Docs. 2, 5) are provisionally granted. Plaintiff must continue his efforts to obtain the appropriate account statement and submit it to the Court for filing in this case as soon as he is able to do so, at which time an initial partial filing fee may be calculated and assessed.

IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel (Doc. 3) is denied without prejudice.

IT IS FURTHER ORDERED that Plaintiff is granted until June 5, 2026, in which to show good cause, in writing, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein.

IT IS SO ORDERED.

Dated May 5, 2026, in Kansas City, Kansas.

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