Sherman v. Keller

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TROY ADAM SHERMAN,
Plaintiff,
v. 	CASE NO. 26-3063-JWL
SUSAN CAROLL KELLER,
Defendant.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Troy Adam Sherman 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.
1. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is housed
at the Center for Behavioral Medicine in Kansas City, Missouri. The Court granted Plaintiff leave
to proceed in forma pauperis.
Plaintiff names his mother, Susan Caroll Keller, as the sole defendant. Plaintiff claims that
about seven and a half years ago, he won a “Direct Express Masper card company and
PayPerks.com sweepstakes.” 	(Doc. 1, at 2–3.) 	He claims the “lottery ticket” was registered to
him with a serial number. Id. at 2. He claims the Defendant, his mother, was able to manipulate
the card company into giving her Plaintiff’s lottery winnings in the amount of $950,000. 	Id.
Plaintiff believes that the bank involved was in Parsons, Kansas, and is named Great Southern
Bank or Community National Bank. Id. at 3. 	Plaintiff seeks the return of his stolen money. Id.
On the form Complaint, Plaintiff marks “no” under the question asking if he has brought
other lawsuits dealing with the same facts. Id. at 5. However, in another section of the Complaint
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 1 of 7

2
he acknowledges that he has appealed his suit against the law enforcement officer that did not
charge his mother for grand larceny. Id. at 6.
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).1
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
1 Plaintiff previously filed an action in this Court on December 17, 2025. See Sherman v. State of Missouri, Case
No. 25-3273-JWL (D. Kan.). In dismissing that case, the Court noted that Plaintiff “currently resides in Kansas City,
Missouri and it appears from his pro se complaint that he has been involuntarily civilly committed to the custody of
the Missouri Department of Mental Health after being adjudicated incompetent to participate in pending Missouri
state criminal charges.” Id. at Doc. 3, at 1. A plaintiff detained for purposes of undergoing a competency evaluation
in connection with criminal charges is a “prisoner” for purposes of the PLRA. See Gilmore v. Easter, 2022 WL
3880714, at *7 (D. Kan. 2022) (finding plaintiff subject to competency proceedings under K.S.A. § 22-2302 remains
subject to §§ 1915 and 1915A) (citing Wolfson v. United States, 336 F. App’x 792, 794 (10th Cir. 2009) (unpublished)
(where plaintiff argued he was not subject to the PLRA because he was sentenced to civil commitment until he regains
competency, the court rejected the argument finding that the PLRA still applied and that the case was distinguishable
from cases where the plaintiff was civilly committed under a state’s sexually violent predator act, where the inmate
was held at a state hospital after being found not guilty by reason of insanity, and where alien detainees were not
facing criminal charges)).
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 2 of 7

3
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
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 3 of 7

4
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. Prior Case and Statute of Limitations
Plaintiff filed a prior case in this Court alleging similar facts. See Sherman v. Veil, Case
No. 26-3003-JWL (D. Kan.). He alleged that his winnings were stolen, but in that case he alleges
that the “Susan Carroll Keller” that allegedly stole his prize money is his sister. He named a law
enforcement officer as the sole defendant, arguing that the officer failed to bring grand larceny
charges against Plaintiff’s sister and let her “and some 30 people get away with $950,000.” Id. at
Doc. 1.2 Plaintiff also alleged in Case No. 26-3003 that this happened over seven years ago. Id.
The Court found that Case No. 26-3003 was barred by the applicable statute of limitations
and dismissed the case for failure to state a claim. Sherman v. Veil, Case No. 26-3003-JWL, Doc. 7
(D. Kan. Feb. 9, 2026). The same reasoning applies in Plaintiff’s current case.
The statute of limitations applicable to § 1983 actions is determined from looking at the
appropriate state statute of limitations and tolling principles. See Hardin v. Straub, 490 U.S. 536,
539 (1989). “The forum state’s statute of limitations for personal injury actions governs civil rights
claims under both 42 U.S.C. § 1981 and § 1983. . . . In Kansas, that is the two-year statute of
2 In Case No. 26-3003, Plaintiff alleged “grand larceny” and stated that after reporting the crime he was beaten and
shot twice, was attacked by people, and a female was killed by people that attacked him. He also suggested that he
was requesting military guns, ammunition, and an I.D. so that he could protect the two towns that he allegedly owns
in Kansas. He also claimed that he did not have a police department or police officers in his towns yet, but that he
would get around to hiring them soon. Plaintiff then listed his family members, including Adolf Hitler and Helen
Keller.
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 4 of 7

5
limitations in Kan. Stat. Ann. § 60–513(a).” Brown v. Unified Sch. Dist. 501, Topeka Pub. Sch.,
465 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted).
While state law governs the length of the limitations period and tolling issues, “the accrual
date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S. 384, 388
(2007). Under federal law, the claim accrues “when the plaintiff has a complete and present cause
of action.” Id. (internal quotation marks and citation omitted). In other words, “[a] § 1983 action
accrues when facts that would support a cause of action are or should be apparent.” 	Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks and citation omitted),
cert. denied 549 U.S. 1059 (2006). A district court may dismiss a complaint filed by an indigent
plaintiff if it is patently clear from the allegations as tendered that the action is barred by the statute
of limitations. 	Id. at 1258–59; see also Jones v. Bock, 549 U.S. 199, 214 (2007); Hawkins v.
Lemons, No. 09-3116-SAC, 2009 WL 2475130, at *2 (D. Kan. Aug. 12, 2009). Plaintiff should
show good cause why his claims are not barred by the applicable statute of limitations.
2. No State Actor
Plaintiff names his mother as the sole defendant in his current case. Plaintiff has not shown
that his mother was acting under color of state law as required under § 1983. 	“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). Because Plaintiff’s Complaint
fails to sufficiently allege that the sole defendant was acting under color of state law, this Court
lacks jurisdiction over the defendant under § 1983. 	See Whitehead v. Marcantel, 766 F. App’x
691, 700 (10th Cir. 2019) (“We conclude that the complaint failed to provide sufficient factual
matter to allege that Keefe was a state actor; therefore, the federal courts lack jurisdiction over this
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 5 of 7

6
claim.”). Plaintiff should show good cause why his claims should not be dismissed for failure to
allege that the sole defendant was acting under color of state law.
3. Frivolous
The Court also found in Case No. 26-3003 the Plaintiff’s claims appeared to be frivolous.
The same reasoning applies to Plaintiff’s claims in his current case. “A complaint . . . is frivolous
when it ‘lacks an arguable basis either in law or in fact.’” Manco v. Does, 363 F. App’x 572, 575
(10th Cir. 2010) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). 	The Tenth Circuit in
Manco held that:
The district court also did not abuse its discretion when it held
Manco’s 	claims 	related 	to 	the 	alleged 	tracking 	device 	were
frivolous. Manco’s theory that numerous state officials monitor his
thoughts and send him inaudible, profane messages is not supported
by any evidence. Manco provides citations to various patents and
secondary literature that describe tracking devices. Even if, for the
sake of argument, this court assumes that such devices exist, Manco
fails to provide evidence that officials implanted a device in his
body, nor does he give a plausible motive for state officials to
embark on such an endeavor. We agree with the district court that
Manco’s tracking device claims are frivolous. See Denton v.
Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340
(1992) (describing frivolous claims as “fanciful,” “fantastic,” and
“delusional,” and holding “a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the irrational
or the wholly incredible, whether or not there are judicially
noticeable facts available to contradict them”).
Id.
The Court found in Case No. 26-3003 that “Plaintiff claims that he won $950,000 from
PayPerks.com 3 and his sister and others stole this money from Plaintiff. Plaintiff also claims that
3 The PayPerks website provides that:
PayPerks education and rewards drive real-world behavior change through easy-to-digest, interactive
education paired with fun gamification and rewards. We help cardholders learn how to use their cards more
effectively, while also offering valuable information on safety and security, budgeting and saving, and other
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 6 of 7

7
he owns two towns in Kansas and needs military equipment to personally police his towns.” 	See
Sherman v. Veil, Case No. 26-3003-JWL, Doc. 7 (D. Kan. Feb. 9, 2026). 	The Court dismissed
Case No. 26-3003 on February 9, 2026, and Plaintiff filed a Notice of Appeal. The case is currently
pending on appeal.
IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein. 	Failure to respond by the deadline may result in dismissal of this action
without further notice.
IT IS THEREFORE ORDERED THAT Plaintiff is granted until April 24, 2026, in
which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated March 24, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
relevant financial skills. Cardholders are rewarded through quizzes, usage rewards, and the chance to win
small cash prizes in monthly drawings.
https://www.payperks.com/ (last visited Jan. 6, 2025) (emphasis added).
Case 5:26-cv-03063-JWL Document 4 Filed 03/24/26 Page 7 of 7