IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
MICHAEL SIBLEY,
Plaintiff,
v. CASE NO. 23-3177-JWL
WALMART, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Michael Sibley 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 in custody at the Saline County Jail in Salina, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 8.) Plaintiff sues Walmart and Jaydon, a Motorola representative. Plaintiff claims that Walmart “failed to be transparent about there [sic] tracfone line of phones.” (Doc. 5, at 2.) Plaintiff claims that there is an “ease at which these phones can be compromised (cloned/mirrored).” Id. Plaintiff claims that this violates people’s privacy and compromises their information. Id. Plaintiff claims that these phones are used in a way that puts individual’s lives and well-being in jeopardy. Id. Plaintiff claims cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff claims he was stalked by people that had access to Defendant’s “straight talk (Trac Fone).” Id. at 3. Plaintiff claims that “[u]pon check out Walmart knowingly activated this portal.” Id. Plaintiff claims that he brought this to the attention of a Walmart manager and was told “why don’t you get a phone from somewhere else then.” Id. at 5. Plaintiff seeks $5,000,000 in compensatory damages and $50,000,000 in punitive damages. Id. II. Statutory Screening The Court granted Plaintiff leave to proceed in forma pauperis. The Court must dismiss the case at any time if the court determines that the action is frivolous or malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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). “If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3). III. DISCUSSION Federal courts are courts of limited jurisdiction, as “[t]hey possess only that power authorized by Constitution and statute . . . which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Federal district courts have “federal question jurisdiction” over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[A] cause of action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of federal law.” Metro. Life Ins. Co. v. Taylor,481 U.S. 58, 63 (1987). Likewise, federal district courts have “diversity jurisdiction” when the amount in controversy exceeds $75,000.00 and there is complete diversity among the parties, which means that no plaintiff may be a citizen of the same state as any defendant. 28 U.S.C. § 1332(a). Plaintiff alleges cruel and unusual punishment in violation of the Eighth Amendment. “[R]eference to Constitutional provisions, in and of themselves, does not confer subject matter
jurisdiction upon a district court.” Bell v. Jeffrey “Jack” Gordon, P.A., 2018 WL 6656772, at *2 (M.D. Fla. 2018) (citing Nalls v. Countrywide Home Servs., LLC, 279 F. App’x 824, 825 (11th Cir. 2008)). To the extent Plaintiff asserts a claim under 42 U.S.C. § 1983, his claim fails as a matter of law because the named defendants are not state actors. Plaintiff has not shown that either defendant was acting under color of state law as required under § 1983. “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). Plaintiff seeks to hold private actors accountable under § 1983 and does not plead that the defendants acted under color
of state law. Because Plaintiff’s complaint fails to sufficiently allege Defendants were acting under color of state law, this Court lacks jurisdiction over these Defendants under § 1983. See Whitehead v. Marcantel, 766 F. App’x 691, 700 (10th Cir. 2019) (“We conclude that the complaint failed to provide sufficient factual matter to allege that Keefe was a state actor; therefore, the federal courts lack jurisdiction over this claim.”). Plaintiff’s claims consist of conclusory allegations and fail to state a claim to relief that is plausible on its face. 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 ‘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.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
MICHAEL SIBLEY,
Plaintiff,
v. CASE NO. 23-3177-JWL
WALMART, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Michael Sibley 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 in custody at the Saline County Jail in Salina, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 8.) Plaintiff sues Walmart and Jaydon, a Motorola representative. Plaintiff claims that Walmart “failed to be transparent about there [sic] tracfone line of phones.” (Doc. 5, at 2.) Plaintiff claims that there is an “ease at which these phones can be compromised (cloned/mirrored).” Id. Plaintiff claims that this violates people’s privacy and compromises their information. Id. Plaintiff claims that these phones are used in a way that puts individual’s lives and well-being in jeopardy. Id. Plaintiff claims cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff claims he was stalked by people that had access to Defendant’s “straight talk (Trac Fone).” Id. at 3. Plaintiff claims that “[u]pon check out Walmart knowingly activated this portal.” Id. Plaintiff claims that he brought this to the attention of a Walmart manager and was told “why don’t you get a phone from somewhere else then.” Id. at 5. Plaintiff seeks $5,000,000 in compensatory damages and $50,000,000 in punitive damages. Id. II. Statutory Screening The Court granted Plaintiff leave to proceed in forma pauperis. The Court must dismiss the case at any time if the court determines that the action is frivolous or malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 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). “If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3). III. DISCUSSION Federal courts are courts of limited jurisdiction, as “[t]hey possess only that power authorized by Constitution and statute . . . which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Federal district courts have “federal question jurisdiction” over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[A] cause of action arises under federal law only when the plaintiff’s well-pleaded complaint raises issues of federal law.” Metro. Life Ins. Co. v. Taylor,481 U.S. 58, 63 (1987). Likewise, federal district courts have “diversity jurisdiction” when the amount in controversy exceeds $75,000.00 and there is complete diversity among the parties, which means that no plaintiff may be a citizen of the same state as any defendant. 28 U.S.C. § 1332(a). Plaintiff alleges cruel and unusual punishment in violation of the Eighth Amendment. “[R]eference to Constitutional provisions, in and of themselves, does not confer subject matter
jurisdiction upon a district court.” Bell v. Jeffrey “Jack” Gordon, P.A., 2018 WL 6656772, at *2 (M.D. Fla. 2018) (citing Nalls v. Countrywide Home Servs., LLC, 279 F. App’x 824, 825 (11th Cir. 2008)). To the extent Plaintiff asserts a claim under 42 U.S.C. § 1983, his claim fails as a matter of law because the named defendants are not state actors. Plaintiff has not shown that either defendant was acting under color of state law as required under § 1983. “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). Plaintiff seeks to hold private actors accountable under § 1983 and does not plead that the defendants acted under color
of state law. Because Plaintiff’s complaint fails to sufficiently allege Defendants were acting under color of state law, this Court lacks jurisdiction over these Defendants under § 1983. See Whitehead v. Marcantel, 766 F. App’x 691, 700 (10th Cir. 2019) (“We conclude that the complaint failed to provide sufficient factual matter to allege that Keefe was a state actor; therefore, the federal courts lack jurisdiction over this claim.”). Plaintiff’s claims consist of conclusory allegations and fail to state a claim to relief that is plausible on its face. 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 ‘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. Ct. at 1974). IV. Motion to Appoint Counsel Plaintiff has filed two motions to appoint counsel. (Docs. 2, 7.) Plaintiff argues that he is indigent, his incarceration will limit his ability to litigate, the issues are complex, Plaintiff has limited access to the law library, Plaintiff has limited knowledges of the law, and counsel would
be better able to present evidence and cross-examine witnesses. (Doc. 2, at 1.) Plaintiff states that he has been unable to obtain counsel. (Doc. 7, at 2–3.) The Court has considered Plaintiff’s motions for appointment of counsel. There is no constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to appoint counsel 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 the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (quoting 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 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). In deciding whether to appoint counsel, courts must evaluate “the merits of a 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.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979). 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 complex; and (3) Plaintiff appears capable of adequately presenting facts and arguments. The Court denies the motions without prejudice to refiling the motion if Plaintiff’s Complaint survives screening. V. Response Required Plaintiff is required to show good cause why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. If Plaintiff fails to respond by the deadline, this matter
may be dismissed without further notice. IT IS THEREFORE ORDERED BY THE COURT Plaintiff’s motions to appoint counsel (Docs. 2, 7) are denied without prejudice. IT IS FURTHER ORDERED that Plaintiff is granted until September 5, 2023, 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 SO ORDERED. Dated August 9, 2023, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE