Opinion
23-3211-JWL
09-22-2023
ISMAEL DELEON ORTEGA, JR., Plaintiff, v. RANDY BROCK, Sheriff, Defendant.
MEMORANDUM AND ORDER TO SHOW CAUSE
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Plaintiff Ismael Deleon Ortega, 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 brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is in custody at the Seward County Law Enforcement Center in Liberal, Kansas. The Court provisionally grants Plaintiff leave to proceed in forma pauperis.
Although Plaintiff's Complaint is hard to decipher, he alleges that on June 2, 2020, he was arrested by someone impersonating an officer with a fake badge. (Doc. 1, at 2.) Plaintiff alleges that “he” went inside Plaintiff's van and took a phone out without a search warrant. Id. Plaintiff alleges that he was held by Sheriff Randy Broke at the Sheriff's Department for five hours. Id. at 3. Plaintiff claims that “he” asked Plaintiff to open up “a Mexico password” that Plaintiff did not know. Id.
Plaintiff names Sheriff Randy Brock or Broke as the sole defendant, and states that he is the Sheriff of Summer County. For relief, Plaintiff seeks to have his state criminal cases dismissed. Id. at 5 (referring to Seward County criminal case numbers 197 and 209).
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 ‘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. Younger Abstention
Plaintiff's claims relate to his criminal proceedings in Seward County, Kansas. See State v. Ortega-Deleon, Case No. 2020-CR-209, filed June 4, 2020 (District Court of Seward County, Kansas); State v. Ortega-Deleon, Case No. 2020-CR-197, filed May 27, 2020 (District Court of Seward County, Kansas). Plaintiff pleaded guilty to sexual exploitation of a child- possess media of child <18. Id. On August 18, 2022, Plaintiff was sentenced to 60 months of confinement in Case No. 2020-CR-209 and 36 months of confinement in Case No. 2020-Cr-197. Id.
On June 1, 2023, an affidavit for probation revocation in Case Nos. 20-CR-197 and 20-CR-209 was entered, stating that Plaintiff was placed on Community Corrections for 36 months commencing on August 18, 2022. Id. A revocation hearing was held on July 13, 2023. Id. A motion to determine competency was filed on July 17, 2023; an order for psychiatric or psychological exam and evaluation was entered on July 19, 2023; and the cases are scheduled for a review hearing on October 16, 2023. Id.
Plaintiff previously raised similar claims in this Court.