Opinion
No. 02-4165-SAC
December 13, 2002
MEMORANDUM AND ORDER
The plaintiff appears pro se in bringing his civil rights action. The magistrate judge recently granted the plaintiff's application for leave to file this action in forma pauperis. Mindful of its obligations under 28 U.S.C. § 1915(e)(2)(B)(ii), the court has reviewed the plaintiff's complaint and determines that it should be dismissed.
"[T]he court shall dismiss the case at any time if the court determines that — . . . (B) the action or appeal — . . . (ii) fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The district court is to apply the following standard:
Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend. See Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997). In determining whether dismissal is proper, we must accept the allegations of the complaint as true and we must construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. See Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997). Further, we must liberally construe the allegations of a pro se complaint. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). Section 1915(e)(2)(B) allows a district court to dismiss a complaint "at any time," and there is no requirement under the statute that the court must first provide notice or an opportunity to respond. Jones v. Barry, 33 Fed. Appx. 967, 971, ___ F.3d ___, 2002 WL 725431 (10th Cir. Apr. 25, 2002).
The plaintiff alleges in his complaint that the defendant State of Kansas has laws and rules and regulations that interfere with constitutional rights and that discriminate against individuals. (Dk. 1, ¶¶ 1 and 2). Neither paragraph refers to any specific state law or rule or regulation, to any violation of the plaintiff's constitutional rights or to any act of discrimination taken against him. The plaintiff further alleges that on August 31, 1997, he sought assistance for a medical condition which he has diagnosed as "asphyxiation" and that "certain professional persons" failed to carry out their responsibilities in violation of the plaintiff's constitutional rights. (Dk. 1, ¶¶ 3-6). The plaintiff also alleges he was maliciously accused and prosecuted, but he does not allege any facts about this prosecution that would support his bare conclusion . (Dk. 1, ¶ 9). Although the complaint contains no jurisdictional allegations, the court assumes the action is being brought pursuant to 42 U.S.C. § 1983 for violations of plaintiff's claimed rights under the United States Constitution. The complaint, however, does not identify the constitutional rights allegedly violated.
The Eleventh Amendment grants the states absolute immunity from suits brought by individuals in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). When the state itself is a named defendant, the Eleventh Amendment bar operates regardless of the legal or equitable nature of the relief sought. Hensel v. Office of Chief Administrative Hearing, 38 F.3d 505, 509 (10th Cir. 1994). For that matter, the only date alleged in the plaintiff's complaint establishes that the claims would be barred by the applicable two-year statute of limitations. See Baker v. Board of Regents of State of Kan., 991 F.2d 628, 630-31 (10th Cir. 1993) (any action brought under 42 U.S.C. § 1983 in Kansas is subject to a two-year statute of limitation). The court concludes that the pro se complaint obviously fails to state a claim upon which relief can be granted and that it would be futile to give the plaintiff an opportunity to amend.
IT IS THEREFORE ORDERED that the plaintiff's complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as failing to state a claim upon which relief can be granted.