Roudybush v. State of Kansas et al
ORDER and NOTICE TO SHOW CAUSE: granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel; granting in part and denying in part 6 Motion for Order; denying 8 Motion for Order; denying 9 Motion to Change Venue. Show Cause response due August 16, 2017. Signed by Magistrate Judge James P. O'Hara on 7/31/2017. Mailed to pro se party by regular and certified mail. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-2303-CM
STATE OF KANSAS, et al.,
ORDER AND NOTICE TO SHOW CAUSE
The pro se plaintiff, John Roudybush, has filed a motion to proceed with this
action in forma pauperis (ECF No. 3), with an accompanying affidavit of financial
status.1 Plaintiff has also filed a motion for appointment of counsel (ECF No. 4), a
petition for continuance (ECF No. 6), a motion for investigation and prosecution (ECF
No. 8), and a motion for order directing the Kansas state court to change the venue of the
criminal case pending against plaintiff by transferring it to this court (ECF No. 9). For
the reasons discussed below, the court grants plaintiff’s motion to proceed in forma
pauperis, denies plaintiff’s motion for appointment of counsel, grants in part and finds as
moot in part plaintiff’s petition for continuance, denies plaintiff’s motion for
investigation and prosecution, and denies the motion for order to the state court to change
As discussed below, on July 27, 2017, plaintiff filed a supplemental financial
affidavit (ECF No. 10).
venue. Additionally, for the reasons discussed below, on or before August 16, 2017, the
court orders plaintiff to show cause to the presiding U.S. District Judge why this case
should not be dismissed.
Motion to Proceed in Forma Pauperis and Petition for Continuance
Section 1915 of Title 28 of the United States Code allows the court to authorize
the commencement of a civil action “without prepayment of fees or security therefor, by
a person who submits an affidavit that . . . the person is unable to pay such fees or give
security therefor.”2 To succeed on a motion to proceed in forma pauperis, the movant
must show a financial inability to pay the required filing fees. 3 “One need not be
‘absolutely destitute’ to proceed [in forma pauperis], but [in forma pauperis] need not be
granted where one can pay or give security for the costs ‘and still be able to provide
[her]self and dependents with the necessities of life.’”4 “Proceeding in forma pauperis in
a civil case ‘is a privilege, not a right—fundamental or otherwise.’”5 The decision to
grant or deny in forma pauperis status under § 1915 lies within the “wide discretion” of
28 U.S.C. § 1915(a)(1).
Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); United States
v. Garcia, 164 Fed. App’x 785, 786 n. 1 (10th Cir. Jan. 26, 2006).
Lewis v. Center Market, 378 F. App’x 780, 785 (10th Cir. 2010) (quoting Adkins
v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)).
Green v. Suthers, No. 99-1447, 208 F.3d 226 (table), 2000 WL 309268, at *2
(10th Cir. Mar. 27, 2000) (quoting White v. Colo., 157 F.3d 1226, 1233 (10th Cir. 1998)).
the trial court.6
On May 31, 2017, the undersigned U.S. Magistrate Judge, James P. O’Hara,
entered an order finding that certain aspects of plaintiff’s financial affidavit were unclear
and required clarification.7 Specifically, the court noted a lack of clarity surrounding
plaintiff’s income over the last twelve months and plaintiff’s interest in real property.
The court ordered plaintiff to file a supplemental financial affidavit by June 14, 2017. On
June 12, 2017, plaintiff filed a petition for continuance (ECF No. 6), seeking a 30-day
extension of time to respond to the court’s May 31, 2017 order. On July 27, 2017,
plaintiff filed a supplemental financial affidavit (ECF No. 10).
The court finds plaintiff’s petition for continuance and supplemental financial
affidavit clarify some of the information contained in plaintiff’s initial affidavit.
Although certain aspects of plaintiff’s financial status remain unclear, the court will grant
plaintiff’s motion to proceed in forma pauperis. In light of the foregoing, the court
denies as moot plaintiff’s petition for continuance to the extent plaintiff seeks an
extension of time to respond to the court’s May 31, 2017 order.
The petition for
continuance is granted, however, to the limited extent plaintiff requests that access to the
document be restricted on the basis that it contains protected health information. The
clerk is directed to restrict access to ECF No. 6.
Garcia, 164 Fed. App’x at 786 n. 1. See also Lister, 408 F.3d at 1312 (“[W]e
review the district court’s denial of IFP status for an abuse of discretion.”).
ECF No. 5.
Screening under 28 U.S.C. § 1915(e)(2)
When a party is granted leave to proceed in forma pauperis, § 1915(e)(2) requires
the court to screen the party’s complaint. The court must dismiss the case if the court
determines that the action (1) is frivolous or malicious, (2) fails to state a claim upon
which relief may be granted, or (3) seeks monetary relief from a defendant who is immune
from suit.8 The purpose of § 1915(e)(2) is to “discourage the filing of, and waste of
judicial and private resources upon, baseless lawsuits that paying litigants generally do
not initiate because of the costs of bringing suit and because of the threat of sanctions for
bringing vexatious suits under Federal Rule of Civil Procedure 11.”9 The screening
procedure set out in § 1915(e)(2) applies to all litigants, prisoners and non-prisoners
In applying § 1915(e)(2) to the pleadings of a pro se litigant, the court must
liberally construe the pleadings and hold them to a less stringent standard than formal
pleadings drafted by attorneys.11
This does not mean, however, that the court must
28 U.S.C. §1915(e)(2)(B).
Trujillo v. Williams, 465 F.3d 1210, 1216 (10th Cir. 2006) (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)).
See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005).
Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir. 2006).
become an advocate for the pro se plaintiff.12 “To state a claim, the plaintiff must provide
‘enough facts to state a claim to relief that is plausible on its face.’”13 The “court need
not accept allegations that state only legal conclusions.”14 Dismissal is appropriate when
“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.”15
Plaintiff’s complaint and the various accompanying attachments are difficult to
comprehend. But it appears plaintiff brings claims against the State of Kansas, the
Twenty-Eighth Judicial District Court, the Saline Board of County Commissioners, and
numerous other defendants, stemming from a hernia injury plaintiff allegedly sustained
while imprisoned in the Saline County Jail. The court liberally construes plaintiff’s
complaint as a 42 U.S.C. § 1983 action alleging that defendants were deliberately
indifferent to plaintiff’s serious medical needs in violation of the Eighth Amendment.
Plaintiff also appears to assert negligence and assault claims related to his injury.
Lyons v. Kyner, 367 F. App’x 878, 881 (10th Cir. 2010).
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Peoples v. Langley/Empire Candle Co., No. 11-2469, 2012 WL 171340, at *2
(D. Kan. Jan. 20, 2012) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
Phillips v. Layden, No. 11-7011, 2011 WL 4867548, at *1 (10th Cir. Oct. 14,
2011) (internal quotation and citation omitted).
Plaintiff seeks monetary damages, and asks the court to order federal prosecutors to bring
criminal charges against defendants for alleged crimes set forth in his attached “criminal
complaint.” Plaintiff also appears to challenge the validity of various state criminal
proceedings, and in that regard, seeks a temporary restraining order, a writ of habeas
corpus, and an order directing the state court to transfer the underlying criminal case to
As an initial matter, to the extent plaintiff asks the court to order federal
prosecutors to bring criminal charges against defendants, the Tenth Circuit has concluded
that such an order “would improperly intrude upon the separation of powers.”16 “‘Broad
[prosecutorial] discretion rests largely on the recognition that the decision to prosecute is
particularly ill-suited to judicial review.’”17 Additionally, none of the various federal
criminal laws cited by plaintiff provide a private right of action.18
Presley v. Presley, 102 F. App’x 636, 636 (10th Cir. 2004).
Id. (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)).
Henry v. Albuquerque Police Dept., 49 F. App’x 272, 273 (10th Cir. 2002)
(upholding district court’s holding that §§ 241 and 242 of Title 18 are criminal statutes
and do not provide a private civil cause of action); Williams v. St. Vincent Hosp., 258
Fed. App’x 293, 295 (11th Cir. 2007) (concluding that plaintiff had no standing to invoke
18 U.S.C. § 1113 “because it is a criminal statute that makes it a federal crime to attempt
to commit murder or manslaughter within the United States.”). The court notes that
although plaintiff cites the Racketeer Influenced and Corrupt Organizations (RICO), 18
U.S.C. § 1961 et seq., which does provide a civil cause of action, plaintiff fails to support
the elements of such a claim. “To successfully state a RICO claim, a plaintiff must allege
The court finds plaintiff’s claims challenging the validity of various state criminal
proceedings should be dismissed. Plaintiff claims he has been “illegally prosecuted” and
seeks a temporary restraining order and a writ of habeas corpus. The Younger abstention
doctrine generally prevents federal courts from interfering with ongoing state criminal
proceedings.19 And a petitioner seeking federal habeas relief is generally required to
exhaust state remedies before proceeding in federal court.20 Plaintiff claims he “tried to
appeal the lower court and was not accomplished due to the appeal is base on attachment
from the lower court and doe to their involvement and influence it was not successful!”21
This statement is insufficient to demonstrate that plaintiff has presented his claims to the
state courts, including the state appellate courts.
Section 1983 Claim
As earlier indicted, plaintiff alleges he was refused medical attention for his
alleged hernia injury while he was imprisoned in the Saline County Jail. This allegation
is insufficient to state a claim under section 1983.22
four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity.” Kearney v. Dimanna, 195 Fed. App’x 717, 720 (10th Cir. 2006) (quotation
Wilson v. Morrissey, 527 Fed. App’x 742, 743 (10th Cir. 2013).
Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
ECF No. 1-6.
To the extent plaintiff asserts a conspiracy claim under 42 U.S.C. § 1985(3)
“A prison official’s deliberate indifference to an inmate’s serious medical needs is
a violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment.”23 The Tenth Circuit has explained that a plaintiff alleging “deliberate
indifference” must plead both an objective and a subjective component:
The objective component is met if the deprivation is sufficiently serious. A
medical need is sufficiently serious if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention. The
subjective component is met if a prison official knows of and disregards an
excessive risk to inmate health or safety. In measuring a prison official’s
state of mind, the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.24
The court assumes, for purposes of this order, that plaintiff’s alleged hernia injury
was “sufficiently serious.”
However, plaintiff’s conclusory allegations that he was
denied necessary medical care fail to establish the requisite culpability on the part of any
related to the same alleged failure to provide medical care, plaintiff fails to support the
elements of such a claim—i.e., plaintiff has not alleged defendants were motivated by
class-based or racially discriminatory animus, nor has plaintiff alleged an agreement and
concerted action. See Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993).
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing Estelle v. Gamble, 429
U.S. 97, 104 (1976)).
Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (internal quotations
Moreover, plaintiff hasn’t alleged personal participation by any defendant.25
“[P]ersonal participation is an essential allegation in a section 1983 claim.” 26 To the
extent plaintiff seeks to impose liability on the County under section 1983, the County
cannot be liable under section 1983 under a theory of respondeat superior. To impose
liability on a municipality under section 1983, plaintiff must “identify a municipal
‘policy’ or ‘custom’ that caused the plaintiff’s injury.”27
Further, though it is difficult to ascertain all of the defendants that plaintiff intends
to sue, the court observes that many are immune from suit. “The Eleventh Amendment
doctrine of sovereign immunity bars actions for damages against a State, its agencies and
its officials acting in their official capacities, including actions arising under section
1983.”28 A state district court is a subdivision of the state and entitled to sovereign
immunity.29 State judges are absolutely immunity from section 1983 liability except for
The court notes that plaintiff does identify specific defendants who were
allegedly made aware of plaintiff’s alleged hernia injury after plaintiff was released from
the Saline County Jail.
Searles v. Bruce, No. 01-3379, 2007 WL 2461618, at *1 (D. Kan. Aug. 23,
2007) (quoting Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996)).
Dodds v. Richardson, 614 F.3d 1185, 1202 (10th Cir. 2010) (quoting Bd. of
Cnty. Com’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997)).
Moore v. Bd. of Cnty. Com’rs of Cnty. of Leavenworth, 470 F.Supp.2d 1237,
1255 (D. Kan. 2007) (citing cases).
KANSAS CONST. art. III, § 6; see also Sigg v. District Court of Allen Cnty.,
No. 06-2436, 2007 WL 913926, at *6 (D. Kan. Mar. 23, 2007) (“the District Court is an
acts taken “in the clear absence of all jurisdiction.”30 This immunity extends to judicial
officers including court clerks.31
State Law Claims
Plaintiff asserts negligence and assault in the context of his alleged hernia injury.
The above-described immunity issues notwithstanding, plaintiff fails to allege facts in
support of such claims. Moreover, in light of the court’s findings with respect to
plaintiff’s federal claims, the court lacks jurisdiction over these state-law claims. Federal
courts are courts of limited jurisdiction.32 When a plaintiff brings a lawsuit asserting both
a violation of federal law and related claims arising from state law, if the federal claims
are dismissed the court does not retain jurisdiction to decide the supplemental state-law
Plaintiff is hereby directed to show cause, in writing, to the Honorable Carlos
Murguia, United States District Judge, on or before August 16, 2017, why the case
agency of the State of Kansas and is entitled to sovereign immunity”) (citations omitted),
aff’d, 253 Fed. App’x 746 (10th Cir. 2007).
Lewis v. Mikesic, 195 Fed. App’x 709, 710 (10th Cir. 2006) (quoting Stump v.
Sparkman, 435 U.S. 349, 357 (1978).
Edge v. Payne, 342 Fed. App’x 395, 398–99 (10th Cir. 2009).
Estate of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161,
1164 (10th Cir. 2004).
Id. at 1167. In this case, plaintiff does not allege original jurisdiction based on
diversity of citizenship because it appears plaintiff and defendants are all residents of
should not be dismissed for failure to state a claim and lack of jurisdiction.
Motion for Counsel
In civil actions such as this one, there is no constitutional right to appointed
counsel.34 However, “under 28 U.S.C. § 1915(e)(1), a district court has discretion to
request counsel to represent an indigent party in a civil case.” 35 The decision to appoint
counsel “is left to the sound discretion of the district court.”36 “In determining whether to
appoint counsel, the district court should consider a variety of factors, including the
merits of the litigant’s claims, the nature of the factual issues raised in the claims, the
litigant’s ability to present his claims, and the complexity of the legal issues raised by the
claims.”37 The court also considers the efforts made by the litigant to retain his own
Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003); Ivory v.
Werholtz, No. 09-3224-SAC, 2009 WL 4043304, at *3 (D. Kan. Nov. 19, 2009) (citing
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)).
Commodity Futures Trading Comm’n v. Brockbank, 316 F. App’x 707, 712
(10th Cir. 2008) (upholding denial of defendant’s motions for counsel).
Lyons v. Kyner, 367 F. App’x 878, 883 n. 9 (10th Cir. 2010) (quoting Shabazz v.
Askins, 14 F.3d 533, 535 (10th Cir. 1994)).
Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991); see also Joe Hand
Prods., Inc. v. Tribelhorn, No. 11-2041, 2011 WL 2516700, at *1 (D. Kan. June 23,
2011) (applying the Long factors).
Sommerville v. Republic Cnty. Hosp., No. 10-4119, 2010 WL 5172995, at *1
(D. Kan. Dec. 14, 2010).
The court does not find it appropriate to appoint counsel for plaintiff. While it
appears from plaintiff’s motion that he has been diligent in his efforts to find an attorney
to represent him, other factors weigh against appointing counsel. The factual and legal
issues in this case are not extraordinarily complex. The court has no doubt that the
district court judge assigned to this case will have little trouble discerning the applicable
law. The court must also consider the merits of plaintiff’s claim. As indicated above, on
this record, the court cannot find that plaintiff’s claims are meritorious.
In the end, the court concludes that this is not a case in which justice requires the
appointment of counsel. If plaintiff devotes sufficient efforts to presenting his case, the
court is certain that he can do so adequately without the aid of counsel. Plaintiff’s
request for appointment of counsel therefore is denied.
Motion for Investigation and Prosecution
In his pleading titled “motion for order” (ECF No. 8), plaintiff asks the court to
order investigations and prosecutions of various defendants for alleged crimes set forth in
his attached “criminal complaint.” As observed above, such an order “would improperly
intrude upon the separation of powers.”39 Plaintiff’s motion for order is denied.
Motion for Order Changing Venue
Finally, in his pleading titled “motion for order for change of venue from 28
Judicial Court to the United States District Court Kansas City, Kansas” (ECF No. 9),
Presley, 102 F. App’x at 636.
plaintiff asks the court to order the Kansas state court adjudicating the underlying
criminal case against him to transfer that state criminal case to this court. Again under
the Younger abstention doctrine discussed above, the court has no authority to issue such
an order. Plaintiff’s motion for an order changing venue is denied.
Plaintiff is informed that within 14 days after he is served with a copy of this
order, he may, pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4(a), file objections
to this order by filing a motion for review of this order by the presiding U.S. district
judge. A party must file any objections within the 14-day period if the party wants to
have appellate review of this order.
IT IS THEREFORE ORDERED that plaintiff’s motion to proceed in forma
pauperis (ECF No. 3) is granted.
IT IS FURTHER ORDERED that plaintiff’s petition for continuance (ECF No. 6)
is granted in part and denied as moot in part. The clerk is directed to restrict access to
ECF No. 6.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel
(ECF No. 4), motion for criminal investigation and prosecution (ECF No. 8), and motion
for order changing venue (ECF No. 9) are denied.
IT IS FURTHER ORDERED that plaintiff shall show cause, in writing, to the
Honorable Carlos Murguia, United States District Judge, on or before August 16, 2017,
why the case should not be dismissed for the reasons stated herein.
Dated July 31, 2017, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O=Hara
U.S. Magistrate Judge
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