Taylor v. State of Kansas et al
MEMORANDUM AND ORDER provisionally granting 2 Motion for Leave to Proceed in forma pauperis; denying 14 Motion for Default Judgment; denying 16 Motion for Hearing; denying 17 Motion for Hearing. IT IS FURTHER ORDERED that plaintiff is gra nted to and including September 4, 2012, to show cause why this matter should not be dismissed for the reasons set forth in this order. The failure to file a timely response may result in the dismissal of this matter without additional notice. Signed by District Judge Sam A. Crow on 8/13/2012.Mailed to pro se party Donnie L. Taylor by regular mail (Attachments: # 1 Unpublished Opinion) (daw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONNIE L. TAYLOR,
CASE NO. 09-3120-SAC
STATE OF KANSAS, et al.,
MEMORANDUM AND ORDER
This matter comes before the court on a civil rights action
filed pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se, and
the court grants provisional leave to proceed in forma pauperis.
defendants including governmental officers, the court is required to
screen his complaint and to dismiss it, or any part of it, that is
frivolous, fails to state a claim on which relief may be granted, or
that seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(a)-(b). Plaintiff’s status as a party
proceeding pro se requires the court to give his pleadings a liberal
reading, see Haines v. Kerner, 404 U.S. 519,520 (1972). However,
despite this, plaintiff has the burden of presenting “enough facts
to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The amended complaint identifies the plaintiff’s claims as
unlawful detention and malicious prosecution. Plaintiff names as
defendants: the State of Kansas, a city attorney, a commissioner,
the Sheriff of Reno County, a Captain at the Reno Detention Center,
the district attorney, an assistant district attorney, a warrant
server, plaintiff’s court-appointed counsel, a defendant in the
criminal action, and two unnamed police officers.
Plaintiff claims he was arrested on April 28, 2009, for failure
to appear. He states he did not receive notice of the hearing for
which he failed to appear and seeks monetary damages for the
allegedly unlawful detention. While plaintiff appears to claim that
he was arrested without a warrant, the court takes judicial notice1
of the following statement of facts by the Kansas Court of Appeals
in a decision in plaintiff’s related criminal action:
In October 2008, Taylor was charged with possession of
marijuana with intent to sell, a felony under K.S.A. 2008
Supp. 65-4163, and with failing to procure tax stamps for
the marijuana in violation of K.S.A. 79-5204. He was later
charged with additional felonies of kidnapping in
violation of K.S.A. 21-3420 and aggravated intimidation of
a witness in violation of K.S.A. 21-3833. [...]
Taylor apparently missed a number of court appearances in
the early stages of the case. The district court issued
and set aside several bench warrants for Taylor. But the
district court’s patience wore thin. Taylor was arrested
on a new bench warrant on April 28, 2009, and remained in
jail from then on awaiting trial. State v. Taylor, 258
P.3d 387, 2011 WL 379481 (Kan.App. 2011).2
See Fed.R.Evid. 201(b)(judicial notice may be taken of a
fact that is “not subject to reasonable dispute in that it
is ... capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned”)
and FRE 201(d)(the court may take judicial notice at any
stage of the proceeding).
A copy of this unpublished order is attached.
Following his arrest, plaintiff’s preliminary hearing was set
over several times, and he was arraigned on September 8, 2009. Trial
in the matter was set for December 1, 2009. On that day, however,
plaintiff’s counsel appeared and requested a continuance. Plaintiff
The state district court granted the motion and set the new
trial date on March 1, 2010. Shortly before that trial date,
plaintiff again requested new counsel, and the trial court appointed
a new attorney. That counsel was granted another continuance.
However, shortly before the new trial date, plaintiff filed a motion
to dismiss the charges against him on speedy trial grounds. He
argued that the time from the continuance on December 1, 2009,
should not be counted against him because he was not personally
present at the time his former attorney requested that continuance,
and thus he was unable to object to the request. The district court
granted that motion and dismissed the charges against petitioner.
The State unsuccessfully appealed. State v. Taylor, 258 P.3d 387
In his amended complaint (Doc. 4), plaintiff asserts a claim of
illegal detention and false imprisonment. The supporting facts
identified by the plaintiff state only that he declined a plea
To the extent plaintiff’s claim of illegal detention is based
upon his assertion that his arrest was made without a warrant, it
appears this claim is barred by the doctrine of issue preclusion, as
the Kansas Court of Appeals decision states that the arrest was made
upon a bench warrant.
Generally, “issue preclusion bars a party from relitigating a
factual or legal issue once he has suffered an adverse determination
on the issue, even if the issue arises when the party is pursuing or
defending against a different claim.” Park Lake Resources Ltd.
Liability v. U.S. Dep’t. of Agriculture. In this case, the issue
concerning the nature of the arrest, that is, whether it was or was
not made under a warrant, was determined against plaintiff. The
earlier matter was decided in the state appellate court, and
plaintiff was a party in that action and had the opportunity to
fully present his claim concerning that arrest.
Plaintiff also asserts a claim of malicious prosecution. The
Tenth Circuit has identified malicious prosecution claims as arising
either under the Fourth Amendment, see Nielander v. Bd. of Ctny
Comm’rs of Ctny. of Republic, Kan., 582 F.3d 1155, 1156 (10th Cir.
2009) or under the Due Process Clause, see Wilkins v. DeReyes, 528
F.3d 790, 797 n.4 (10th Cir. 2008).
constitutional rights, he must establish the remaining elements of
a malicious prosecution claim, namely, that the defendant caused the
plaintiff’s confinement or prosecution; the action terminated in
favor of the plaintiff; there was no probable cause to support the
arrest, confinement, or prosecution of the plaintiff; the defendant
acted with malice; and damages. McCarty v. Gilchrist, 646 F.3d 1281,
1285 (10th Cir. 2011).
In the present case, it appears plaintiff, contrary to his
representations, was arrested pursuant to a bench warrant; and was
stopped in a car containing marijuana plants, a fact supporting
probable cause for the charges against him. Next, while plaintiff
points out that charges of kidnapping and intimidation of a witness
were added several months later, that delay does not demonstrate a
lack of probable cause.
Likewise, the dismissal in this matter was upon speedy trial
grounds after plaintiff’s counsel sought a continuance outside the
plaintiff. Finally, plaintiff offers nothing beyond a conclusory
allegation of malice on the part of any defendant.
Indeed, of the defendants named in this action, plaintiff has
not clearly identified any acts or omissions against any particular
defendant. Certainly, plaintiff’s claim against the State of Kansas
must fail under the Eleventh Amendment immunity that bars a private
party from suing a state in federal court unless Congress has
clearly abrogated the state’s sovereign immunity or the state has
waived that immunity. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99 (1984)(citing Quern v. Jordan, 440 U.S. 332 (1979)
for its holding that §1983 does not override Eleventh Amendment
Likewise, the complaint offers no explanation of any acts or
omissions by the city attorney, city commissioner, the Sheriff of
Reno County, a captain at the Reno Detention Center, a warrant
server, or two unnamed police officers.
The district attorney and assistant district attorney are
entitled to absolute prosecutorial immunity for their actions taken
in prosecuting the criminal charges brought against the plaintiff.
Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). Any claim against
plaintiff’s court-appointed counsel fails because a private attorney
is not a state actor under § 1983. See Polk County v. Dodson, 454
U.S. 312, 325 (1981). Similarly, plaintiff’s claim against his
former co-defendant, whose statements eventually led to the charges
of kidnapping and intimidation of a witness, fails because that
individual was not a state actor.
Notice to the plaintiff
For the reasons set forth, the court is considering the
dismissal of this action for failure to state a claim upon which
relief may be granted. The court denies plaintiff’s motion for
default judgment (Doc. 14) and two motions for hearing (Docs. 16 and
17); however, the plaintiff will be given the opportunity to show
cause why this matter should not be dismissed for the reasons set
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is provisionally
IT IS FURTHER ORDERED plaintiff’s motion for default judgment
(Doc. 14) and his motions for hearing (Docs. 16 and 17) are denied.
IT IS FURTHER ORDERED plaintiff is granted to and including
September 4, 2012, to show cause why this matter should not be
dismissed for the reasons set forth in this order. The failure to
file a timely response may result in the dismissal of this matter
without additional prior notice.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
This 13th day of August, 2012, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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