IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
HAMISI YUSUF AHMED,
Plaintiff,
v. CASE NO. 22-3082-SAC
SEDGWICK COUNTY SHERIFF’S OFFICE, et al.,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee, proceeds pro se. His fee status is pending. Nature of the Complaint Plaintiff sues the Sheriff’s Office of Sedgwick County and the Sedgwick County Adult Detention Facility (SCADF). He alleges abuse of power and attempted murder due to a refusal to wear masks while walking or guarding him, misconduct and racial profiling, and discrimination. He seeks damages and equitable 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 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “To state a claim for relief under Section 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). 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, 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 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 Screening The court’s review of the complaint has identified certain deficiencies. First, as noted, plaintiff names the SCADF as a defendant. “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). As a governmental sub-unit, a prison or jail cannot sue or be sued because such an entity is not a “person” subject to suit for monetary damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989). Therefore, such a defendant is subject to dismissal. See Hinton v. Dennis, 362 F. App’x 904, 907 (10th Cir. 2010)(unpublished)(“generally, governmental sub-units are not separable suable entities that may be sued under § 1983”) and Aston v. Cunningham, 2000 WL 796086, *4 n.3 (10th Cir. June 21, 2000)(unpublished)(stating that jail would be dismissed capable of being sued”). The detention facility therefore is subject to dismissal. Next, to state a claim for relief for a constitutional violation under § 1983, a plaintiff must show that the defendant acted under color of state law and caused, or contributed to, the harm alleged. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). The plaintiff also must show the personal participation of each defendant, and bare allegations are insufficient to meet this showing. Id.; see also Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)(“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”). Because plaintiff makes only bare allegations that do not identify any personal participation by an individual defendant in the deprivation of his rights, he must identify the individual defendants who participated in the violations he alleges. Finally, the complaint contains little detail on how plaintiff alleges that his rights were violated. A party proceeding pro se may not proceed on “conclusory allegations without supporting factual averments”. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”). Accordingly, in order to proceed, plaintiff must provide factual support for his claims by explaining whose actions or omissions violated his rights, when the relevant events occurred, and how he was injured. Plaintiff will be given the opportunity to amend the complaint; The motion to appoint counsel Plaintiff moves for the appointment of counsel.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
HAMISI YUSUF AHMED,
Plaintiff,
v. CASE NO. 22-3082-SAC
SEDGWICK COUNTY SHERIFF’S OFFICE, et al.,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee, proceeds pro se. His fee status is pending. Nature of the Complaint Plaintiff sues the Sheriff’s Office of Sedgwick County and the Sedgwick County Adult Detention Facility (SCADF). He alleges abuse of power and attempted murder due to a refusal to wear masks while walking or guarding him, misconduct and racial profiling, and discrimination. He seeks damages and equitable 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 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “To state a claim for relief under Section 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). 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, 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 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 Screening The court’s review of the complaint has identified certain deficiencies. First, as noted, plaintiff names the SCADF as a defendant. “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). As a governmental sub-unit, a prison or jail cannot sue or be sued because such an entity is not a “person” subject to suit for monetary damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989). Therefore, such a defendant is subject to dismissal. See Hinton v. Dennis, 362 F. App’x 904, 907 (10th Cir. 2010)(unpublished)(“generally, governmental sub-units are not separable suable entities that may be sued under § 1983”) and Aston v. Cunningham, 2000 WL 796086, *4 n.3 (10th Cir. June 21, 2000)(unpublished)(stating that jail would be dismissed capable of being sued”). The detention facility therefore is subject to dismissal. Next, to state a claim for relief for a constitutional violation under § 1983, a plaintiff must show that the defendant acted under color of state law and caused, or contributed to, the harm alleged. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). The plaintiff also must show the personal participation of each defendant, and bare allegations are insufficient to meet this showing. Id.; see also Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)(“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”). Because plaintiff makes only bare allegations that do not identify any personal participation by an individual defendant in the deprivation of his rights, he must identify the individual defendants who participated in the violations he alleges. Finally, the complaint contains little detail on how plaintiff alleges that his rights were violated. A party proceeding pro se may not proceed on “conclusory allegations without supporting factual averments”. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (stating that a court may not “supply additional factual allegations to round out a plaintiff's complaint”). Accordingly, in order to proceed, plaintiff must provide factual support for his claims by explaining whose actions or omissions violated his rights, when the relevant events occurred, and how he was injured. Plaintiff will be given the opportunity to amend the complaint; The motion to appoint counsel Plaintiff moves for the appointment of counsel. There is no constitutional right to the appointment of counsel in a civil matter. Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). Rather, the decision whether to appoint counsel in a civil action lies in the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). The party seeking the appointment of counsel has the burden to convince the court that the claims presented have sufficient merit to warrant the appointment of counsel. Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2016)(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 movant] 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)). The Court should consider “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. The court has considered the record and declines to appoint counsel at this time. Plaintiff has not yet advanced sufficient facts to state a claim for relief, and the court cannot say on the present record that the appointment of counsel is warranted. Conclusion For the reasons set forth, the court grants plaintiff to and including May 25, 2022, to file an amended complaint or, in the alternative, to show cause why the present complaint should not be If plaintiff chooses to file an amended complaint, it must be submitted upon court-approved forms. In order to add claims or significant factual allegations, or to change defendants, plaintiff must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not an addendum or supplement to the original complaint but completely supersedes it. Therefore, any claims or allegations not presented in the amended complaint are no longer before the court. Plaintiff may not simply refer to an earlier pleading; instead, the complaint must contain all allegations and claims that plaintiff intends to present in the action, including those to be retained from the original complaint. Plaintiff must include the case number of this action on the first page of the amended complaint. Plaintiff must name every defendant in the caption of the amended complaint. See Fed. R. Civ. P. 10(a). He must reefer to each defendant in the body of the complaint and must allege specific facts that the describe the allegedly unconstitutional acts or omissions by each defendant, including dates, locations, and circumstances. IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to and including May 25, 2022, to submit an amended complaint or to show cause why the present complaint should not be dismissed for the reasons set out. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Doc. 4) is denied. IT IS SO ORDERED. DATED: This 25th day of April, 2022, at Topeka, Kansas. S/ Sam A. Crow SAM A. CROW U.S. Senior District Judge