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2011 D Kan Maley - First Appearance of AR in Judicial Opinion

2011 D Kan Maley - First Appearance of AR in Judicial Opinion

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Published by Brian Wassom

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Published by: Brian Wassom on Sep 17, 2011
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2011 U.S. Dist. LEXIS 103589
2011 U.S. Dist. LEXIS 103589, *
MARCUS A. MALEY, Plaintiff, v. WYANDOTTE COUNTY, et al., Defendants.CASE NO. 11-3143-SACUNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS2011 U.S. Dist. LEXIS 103589September 12, 2011, DecidedSeptember 12, 2011, Filed
CORE TERMS:
forma pauperis, frivolous, jail, venue, pro se, restraining order, failure to state aclaim, speedy trial
COUNSEL:[*1]
Marcus A. Maley, Plaintiff, Pro se, Garnett, KS.
JUDGES:
Sam A. Crow, U. S. Senior District Judge.
OPINION BY:
Sam A. Crow
ORDER 
This pro se action was filed as a civil rights complaint,42 U.S.C. § 1983, by Mr. Maley. He names asdefendants Wyandotte County, Wyandotte County Jail (WCJ), and Sheriff of Wyandotte County;however he states in his poverty affidavit that he is not currently incarcerated.Plaintiff lists the following conclusory "counts:" detained without formal charges, jail facilityconditions, implants, torture, "attempt at murder," and illegal use of augmented reality." He does notallege a single fact to explain or support any of these counts. He then lists a few incomplete cites withno analysis. Plaintiff seeks $100,000,000.00 in damages.Plaintiff has also filed an application to proceed in forma pauperis (Doc. 2) stating that he has nocash, accounts, or property. The court finds that this motion shall be granted.Mr. Maley requests "a change of venue" to the Western District of Missouri. This request is denied. Healleges no facts or authority indicating that this case against defendants in Kansas could properlyhave been brought in the District of Missouri. Nor does he suggest why he filed
[*2]
this case hererather than in Missouri if that is the proper venue.
OPINION
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Plaintiff has filed a motion seeking a "restraining order against all law enforcement, city, state, andfederal . . . in the United States." No legal or factual basis for this motion is suggested, and it isdenied.The court is required by statute to "dismiss at any time" a complaint brought in forma pauperis or anyportion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief.28 U.S.C. § 1915(e)(2)(B). The court finds that thecomplaint in this case is subject to being dismissed under§ 1915(e)(2)(B)for the following reasons."To state a claim undersection 1983, a plaintiff must allege the violation of a right secured by theConstitution and laws of the United States, and must show that the alleged deprivation wascommitted by a person acting under color of state law."West v. Atkins, 487 U.S. 42, 48-49, 108 S.Ct. 2250, 101 L. Ed. 2d 40 (1988)(citations omitted);Northington v. Jackson, 973 F.2d 1518, 1523(10th Cir. 1992). Neither "Wyandotte County" nor the "Wyandotte County Jail" is a "person"amenable to suit for money damages underSection 1983.In addition, the
[*3]
court finds that plaintiff has failed to allege any facts to state a claim of federalconstitutional violation underSection 1983. A pro se complaint must be given a liberal construction.SeeHaines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). However, the court"will not supply additional factual allegations to round out a plaintiff's complaint or construct a legaltheory on a plaintiff's behalf."Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).Furthermore, an essential element of a§ 1983complaint is the personal participation of each personthat is named as a defendant. Plaintiff utterly fails to describe any act on the part of the "WyandotteCounty Sheriff" showing his or her personal participation in an unconstitutional act or acts that wouldentitle Mr. Maley to damages.Mr. Maley is given the opportunity to show cause why this action should not be dismissed as frivolousand for failure to state a claim. If he fails to file an adequate response within the time provided, thisaction may be dismissed without further notice.
IT IS THEREFORE ORDERED
that plaintiff is granted twenty (20) days in which to show cause whythis action should not be dismissed as frivolous and for
[*4]
failure to state a claim.
IT IS FURTHER ORDERED
that plaintiff's motion to proceed in forma pauperis (Doc. 2) is granted,that plaintiff's request for change of venue and speedy trial
1
(Doc. 3) is denied, and that plaintiff'sMotion for a restraining order (Doc. 4) is denied.
FOOTNOTES
1
This is not a criminal action in which a motion for speedy trial may be filed, and plaintiff presentsno authority or facts to support this request in this civil action.
IT IS SO ORDERED
.Dated this 12th day of September, 2011, at Topeka, Kansas. /s/Sam A. CrowU. S. Senior District Judge
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View: FullDate/Time: Friday, September 16, 2011 - 5:14 PM EDT
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