Williams v. Achevedo

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

ABDUL WILLIAMS, JR.,

Plaintiff,

v. CASE NO. 25-3161-JWL

(FNU) ARCHEVEDO, et al.,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

Plaintiff Abdul Williams, Jr., 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, a federal prisoner, brings this pro se civil rights action under 28 U.S.C. § 1331. Although Plaintiff is currently incarcerated at Butner-FCI in Butner, North Carolina, his claims are based on incidents occurring during his incarceration at FCI-Leavenworth in Leavenworth, Kansas (“FCIL”).1 The Court grants Plaintiff’s motions (Docs. 2, 5) for leave to proceed in forma pauperis. Plaintiff alleges that on February 21–24, 2024, at FCIL, Plaintiff and Defendant Achevedo had a conversation about “the outside world,” and what was going on out there. (Doc. 4, at 6.) Plaintiff alleges that Achevedo showed Plaintiff who he was dating on Achevedo’s phone. Plaintiff alleges that CO Burton “chimed into [their] conversation” and said if he saw Plaintiff in the world, he would kill Plaintiff. Id. Plaintiff alleges that “words were exchanged,” and Plaintiff asked Burton to step into the cell with Plaintiff. Plaintiff alleges that Burton declined, but

1 The facility was previously named USP-Leavenworth. Achevedo accepted. Id. Plaintiff alleges that he and Achevedo fought, and a few weeks later Plaintiff reported it to Captain Clark. Id. Plaintiff alleges that when Achevedo found out that Plaintiff reported the incident, Achevedo told Plaintiff to stop what Plaintiff was doing, and that Plaintiff’s paperwork would never reach where it needs to go because Achevedo’s father “is a very high ranking member

throughout the BOP.” Id. On September 19, SIA Slocktner asked Plaintiff about the incident, and Plaintiff told him everything he needed to know. Id. Plaintiff alleges that as Plaintiff was escorted back to his cell CO Hess asked Plaintiff what he told SIA. Id. Plaintiff did not respond, and shortly thereafter “he began feeding [sic] something was wrong with [Plaintiff’s] tray.” Id. Plaintiff was told he would bring him another tray, and an orderly brought Plaintiff another tray and placed it in front of Plaintiff’s door. Id. at 7. Plaintiff alleges that when Hess returned, he told Plaintiff he was not feeding him, and Plaintiff yelled and cussed him out. Id. Plaintiff alleges that he was not fed until the next morning, and he could barely get out of bed because he is a type 2 diabetic. Id. Nurse McCough read Plaintiff’s sugar

level and it was at 78. Id. The nurse gave Plaintiff a tablet and wished him the best of luck. Id. Plaintiff names as defendants: (fnu) Achevedo, FCIL Correctional Officer (“CO”); (fnu) Burton, CO at FCIL; and (fnu) Hess, CO at FCIL. For relief, Plaintiff seeks $4 million in compensatory damages, a transfer to Fort Worth, Texas, and “time off [his] sentence.” Id. at 5. II. Statutory Screening 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, 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). III. DISCUSSION 1. Claims Under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)

Plaintiff has not shown that a Bivens remedy is available for his claims. The Tenth Circuit recently noted that the Supreme Court “is on course to treating Bivens as a relic of the 20th century” and that “[t]his development has been gradual, but relentless.” Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024), rehr’g denied (Apr. 5, 2024). The Tenth Circuit in Logsdon found that: Without explicitly overruling its three acknowledged precedents, the [Supreme] Court has shown an increasing willingness to distinguish them, now stating that the ultimate question to ask when determining whether the courts should recognize a Bivens cause of action not created by Congress is ordinarily only “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert v. Boule, 596 U.S. 482, 492, 142 S. Ct. 1793, 213 L.Ed.2d 54 (2022). And the circumstances in which the answer to the question is “no” appears to comprise a null set. See id. at 503, 142 S. Ct. 1793. (Gorsuch, J., concurring) (“When might a court ever be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of creating a cause of action? It seems to me that to ask the question is to answer it. To create a new cause of action is to assign new private rights and liabilities—a power that is in every meaningful sense an act of legislation.”); see also Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (“[W]e are left in no doubt that expanding Bivens is not just ‘a disfavored judicial activity,’ it is an action that is impermissible in virtually all circumstances.” (quoting Egbert, 596 U.S. at 491, 142 S. Ct. 1793) (citation omitted)). The Court has said in effect that almost any difference between the case at hand and the three Court precedents can justify rejecting a cause of action. See Egbert, 596 U.S. at 503, 142 S. Ct. 1793 (Gorsuch, J., concurring) (“Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself.”).

And, perhaps even more striking, the Court has justified a departure from those precedents even when the facts are virtually the same if the government can provide a reason for not recognizing a cause of action that was not considered in the applicable precedent. Thus, in Egbert itself the Court considered an excessive-force claim, similar to the one in Bivens, against a federal officer. See Egbert, 596 U.S. at 495, 142 S. Ct. 1793 (“Bivens and this case do involve similar allegations of excessive force and thus arguably present almost parallel circumstances or a similar mechanism of injury.” (internal quotation marks omitted)). But it held that the court of appeals erred by recognizing a cause of action under Bivens, distinguishing Bivens based on facts that have no bearing on the elements of an excessive- force claim: the incident arose in the “border-security context,” and Congress had created remedies for misconduct by government agents. See id. at 494, 142 S. Ct. 1793. Given such hurdles placed in the way of a Bivens cause of action, Mr. Logsdon has no claim.

Id. at 1355–56. The Tenth Circuit in Logsdon found that “[a] second independent ground for not recognizing a Bivens action . . . is that the availability of alternative remedies for misconduct . . . suggests that this court should not be the institution to create a remedy.” Id. at 1359. “If there are alternative remedial structures in place, that alone, like any special factor, is reason enough to limit the power of the Judiciary to infer a new Bivens cause of action.” Id. (quoting Egbert, 596 U.S. at 493). The Tenth Circuit quoted Egbert as follows: “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy. That is true even if a court independently concludes that the Government’s procedures are not as effective as an individual damages remedy.” Id. at 498, 142 S. Ct. 1793 (internal quotation marks omitted).

Id. In Silva, the Tenth Circuit held that the Bureau of Prison’s Administrative Remedy Program “ARP” was adequate. Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022) (finding that the key takeaway from Egbert is “that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs’ ”) (citation omitted); see also Noe v. United States Gov’t, 2023 WL 8868491, at *3 (10th Cir. Dec. 22, 2023) (“We need not decide whether Noe’s case is meaningfully different from Carlson, because in the wake of Egbert and Silva . . . the availability of the ARP is sufficient to foreclose a Bivens claim despite any factual similarity between the two.”). In Silva, the Tenth Circuit had little difficulty in concluding “that the BOP Administrative Remedy Program is an adequate ‘means through which allegedly unconstitutional actions . . . can be brought to the attention of the BOP and prevented from recurring.’ ” Silva, 45 F.4th at 1141 (citation omitted). The Silva court found that “because Bivens ‘is concerned solely with deterring the unconstitutional acts of individual officers,’ . . . the availability of the BOP’s Administrative Remedy Program offers an independently sufficient ground to foreclose Plaintiff’s Bivens claim.” Id. (citing Egbert, 142 S. Ct. at 1806 (quoting Malesko, 534 U.S. at 71, 122 S. Ct. 515)). Plaintiff has not shown that a Bivens remedy is available. Furthermore, he fails to state which of his constitutional rights were allegedly violated. Plaintiff should show good cause why his claims should not be dismissed for failure to state a claim. 2. Motion for Appointment of Counsel Plaintiff has filed a Motion for Appointment of Counsel (Doc. 6), arguing that he is not

familiar with the law and needs help litigating. The Court has considered Plaintiff’s motion for appointment of counsel. 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. IV. 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 matter without further notice for failure to state a claim. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motions for leave to proceed in forma pauperis (Docs. 2, 5) are granted. Notwithstanding this grant of leave, Plaintiff

is required to pay the full amount of the filing fee and is hereby assessed $350.00. Plaintiff is required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of Plaintiff shall forward payments from the prisoner’s account to the Clerk of the Court each time the amount in the account exceeds $10.00 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). The Clerk is to transmit a copy of this order to Plaintiff, to the finance office at the institution where Plaintiff is currently confined, and to the Court’s finance office. IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel (Doc. 6) is denied without prejudice. IT IS FURTHER ORDERED that Plaintiff is granted until October 30, 2025, 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 September 30, 2025, in Kansas City, Kansas.

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