Opinion
No. 04-4005-SAC
February 12, 2004
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. (Dk. 5). By the terms of 28 U.S.C. § 1915(e)(2)(B)(ii), the plaintiff's complaint must be reviewed and if found to be frivolous or malicious or to not state a claim on which relief may be granted, then the court must dismiss the case. In applying this statute, the district court follows some well-established rules:
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 fufile to give him an opportunity to amend. In determining whether dismissal is proper, we must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. In addition, we must construe a pro se appellant's complaint liberally.
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (internal quotation marks and citations omitted); see also 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. See Jones v. Barry, 33 Fed. Appx. 967, 971, 2002 WL 725431 (10th Cir. Apr. 25, 2002).
Parsed to its substantive allegations, the rambling complaint offers that plaintiff gave an uncounseled statement that was unconstitutionally used to convict him "at the District Court level," and that when he was arrested and detained on these unspecified charges he was subjected to "barbaric treatment" and unconstitutional conditions in the county facility. The complaint does not mention any dates for these alleged events. The complaint names three individuals whom the plaintiff says he will subpoena. Attached to the complaint is a document entitled, "Topeka Police Department Statement" dated January 14, 1982, and signed by the plaintiff. The statement refers to one of the persons named in the plaintiff's complaint as an "investigator."
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. "To state a claim under 42 U.S.C. § 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). "[C]onclusory 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) (citation omitted). Despite the rule of liberal construction afforded pro se complaints, the vague and conclusory allegations in the plaintiff's complaint are simply insufficient to state a claim under § 1915(e)(2)(B)(ii). See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).
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). While this immunity can be waived, the State of Kansas has not done so in this case, nor has this immunity been abrogated for any cause of action that plaintiff has alleged. Further, a state is not a "person" for purposes of § 1983. See Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995). Thus, the Eleventh Amendment bars plaintiff's suit under 42 U.S.C. § 1983 against the State of Kansas. 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 fufile to give the plaintiff an opportunity to amend.
The court is aware that the plaintiff's prior lawsuits against the State of Kansas have been dismissed on similar grounds, including Eleventh Amendment immunity. See e.g., Gilbert v. Kansas, 2003 WL 21939772 (D. Kan. Jul. 17, 2003); Gilbert v. Kansas, 2003 WL 1090200 (D. Kan. Mar 07, 2003); Gilbert v. Kansas, 2002 WL 31928493 (D. Kan. Dec 13, 2002); Gilbert v. State of Kansas, 2002 WL 31863840 (D. Kan. Dec 16, 2002). Even so, the court will not discuss frivolousness as an alternative ground for dismissal under § 1915(e)(2)(B)(i). The court admonishes the plaintiff that these repeated filings and the resulting orders of dismissal will serve as a sound basis for summarily dismissing future similar suits as frivolous.
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.