Williams v. Sullivan

• Court: District Court, D. Kansas
• Decided: October 4, 2021
• Docket: 5:21-cv-03109
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JAMAL WILLIAMS, Plaintiff, v. CASE NO. 21-3109-SAC MICHELLE SULLIVAN, et al., Defendants. MEMORANDUM AND ORDER TO SHOW CAUSE Plaintiff Jamal Williams 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. The motion for appointment of counsel filed by Plaintiff (ECF No. 3) before the Court is denied. 1. Nature of the Matter before the Court Plaintiff brings this pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is a

former state prisoner. The Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff alleges in his Complaint that he was wrongfully imprisoned for 14 days beyond his release date. He names as defendants Michelle Sullivan, Kansas Department of Corrections (KDOC) Sentence Computation Unit Manager, and the KDOC Sentence Computation Unit. Plaintiff seeks $42,000 in damages as compensation for the days he was falsely imprisoned and for emotional distress, pain, and suffering. 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 A. Defendants An essential element of a civil rights claim against an individual is that person’s direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Robertson v. Las Animas County Sheriff's Dept., 500 F.3d 1185, 1193 (10th Cir.2007); Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006); Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)(“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”). “To establish a violation of § 1983 ... the plaintiff must establish a deliberate, intentional act on the part of the defendant to violate the plaintiff's legal rights.” Porro v. Barnes, 624 F.3d 1322, 1327–28 (10th

Cir.2010). The Complaint fails to allege any facts showing that Defendant Sullivan personally participated in the claimed violation of Plaintiff’s constitutional rights. It is not enough for Plaintiff to allege that Defendant Sullivan was KDOC Sentence Computation Unit Manager. Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (finding that to be held liable under § 1983, a supervisor must have personally participated in the complained-of constitutional deprivation). Plaintiff makes no allegation that Defendant Sullivan participated in the computation of Plaintiff's sentence, the determination of his release date, or any decision resulting in his alleged over- detention. As a result, Defendant Sullivan is subject to dismissal from this lawsuit.

The only other defendant named by Plaintiff, the KDOC Sentence Computation Unit, is not a proper defendant to this § 1983 action. The State and its agencies such as the Department of Corrections are not “persons” that Congress made amenable to suit for damages under § 1983. Howlett v. Rose, 496 U.S. 356, 365 (1990); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 64, 71 (1989)(“Neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”). Moreover, the State of Kansas and its agencies, such as the KDOC, are absolutely immune to suit for money damages under the Eleventh Amendment. Consequently, suits against the State and its agencies are barred, absent consent, regardless of the relief sought. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Cory v. White, 457 U.S. 85, 90-91 (1982); Trujillo v. Williams, 465 F.3d 1210, 1214 n.1 (10th Cir. 2006)(citing ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187 (10th Cir. 1998)(“[A] citizen’s suit against a state agency is barred by the Eleventh Amendment just as surely as if the suit had named the state itself.)); see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984))(It does

not matter what form of relief a citizen might request in a suit against a state agency.”)). The Complaint is subject to dismissal for failure to state an actionable claim against the defendants. B. Relief Sought The relief sought by Plaintiff is money damages to compensate for the 14 days he alleges he was falsely imprisoned and to compensate for emotional distress, pain, and suffering. Section 1997e(e) . . . provides in pertinent part: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

42 U.S.C. § 1997e(e). Section 1997e(e) applies regardless of the nature of the underlying substantive violation asserted. Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001), cert. denied, 536 U.S. 904 (2002) (applying §1997e(e) to the plaintiff’s First Amendment claim for free exercise of religion). Plaintiff’s request for compensatory damages is subject to dismissal as barred by 42 U.S.C. § 1997e(e). Plaintiff has not described any physical injury that was caused by the alleged deprivation of his constitutional rights. The only relief requested in the Complaint is money damages. The Court finds that Plaintiff’s claim for actual or compensatory damages is subject to being dismissed unless he alleges facts showing a prior physical injury. C. Motion to Appoint Counsel (ECF No. 3) Plaintiff asks the Court to appoint counsel to represent him because he cannot afford to hire an attorney. There is no constitutional right to the 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 within 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, the district 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; Hill, 393 F.3d at 1115. Considering these factors, the Court concludes that it is not clear at this point that Plaintiff has asserted a colorable claim. The Court has not yet made the determination of whether or not Plaintiff’s claim survives the initial screening required by 28 U.S.C. § 1915. Therefore, the Court denies Plaintiff’s motion for appointment of counsel at this time. However, this denial is made without prejudice. If it becomes apparent that appointed counsel is necessary as this case further progresses, Plaintiff may renew his motion. IV. Response Required For the reasons stated herein, Plaintiff’s Complaint is subject to dismissal in its entirety. Plaintiff is therefore required to show good cause why his Complaint should not be dismissed. Plaintiff is warned that his failure to file a timely response may result in the Complaint being dismissed without further notice.

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until November 4, 2021, 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’s Motion to Appoint Counsel (ECF No. 3) is denied without prejudice. IT IS SO ORDERED. Dated October 4, 2021, in Topeka, Kansas.

s/_Sam A. Crow_____ SAM A. CROW SENIOR U. S. DISTRICT JUDGE