Beard v. Kansas, State of et al

Filing 3

ORDER ENTERED: Plaintiff is granted leave to proceed in forma pauperis. The complaint seeking relief under 42 U.S.C. 1983 is dismissed. Signed by Senior District Judge Sam A. Crow on 5/24/2011. (Mailed to pro se party Ronald L. Beard by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD L. BEARD, SR.,
Plaintiff,
v.

CASE NO. 09-3269-SAC

STATE OF KANSAS, et al.,
Defendants.

O R D E R
This matter comes before the court on a pro se form complaint
submitted under 42 U.S.C. § 1983 by a pretrial detainee confined in
the Reno County Detention Center in Hutchinson, Kansas. Also before
the court is plaintiff’s motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915.
28 U.S.C. § 1915
Plaintiff must pay the full $350.00 filing fee in this civil
action. See 28 U.S.C. § 1915(b)(1)(prisoner bringing a civil action
or appeal in forma pauperis is required to pay the full filing fee).
If granted leave to proceed in forma pauperis, plaintiff is entitled
to pay this filing fee over time, as provided by payment of an
initial partial filing fee to be assessed by the court under 28
U.S.C. § 1915(b)(1) and by periodic payments from plaintiff's inmate
trust

fund

account

as

authorized

in

28

U.S.C.

§

1915(b)(2).

Pursuant to 28 U.S.C. § 1915(b)(1), the court is required to assess
an initial partial filing fee of twenty percent of the greater of
the average monthly deposits or average monthly balance in the
prisoner's account for the six months immediately preceding the date

of filing of a civil action. Having considered the sparse financial
records provided by plaintiff, the court finds no initial partial
filing fee may be imposed at this time due to plaintiff's limited
resources, and grants plaintiff leave to proceed in forma pauperis.
See 28 U.S.C. § 1915(b)(4)(where inmate has no means to pay initial
partial filing fee, prisoner is not to be prohibited from bringing
a civil action).

Plaintiff remains obligated to pay the full

$350.00 district court filing fee in this civil action, through
payments from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).
42 U.S.C. § 1983
Plaintiff’s

allegations

in

the

complaint

center

dissatisfaction with his defense counsel, Britt Colle.
contends

Colle

is

not

adequately

or

properly

on

his

Plaintiff

investigating

plaintiff’s case, conducting and sharing discovery, or pursuing plea
negotiations.

Plaintiff further states he filed a disciplinary

complaint against Colle, an appeal in the state courts, and asked
the trial judge for substitute counsel.

In the present case,

plaintiff seeks the appointment of a new attorney, and also seeks
restitution for Colle’s alleged malpractice, ineffective assistance,
and implied coercion. The two defendants named in the complaint are
Colle and the State of Kansas.
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court is to dismiss
an in forma pauperis complaint if the court finds the complaint is
frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief against a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2).

Having reviewed

plaintiff’s allegations, the court finds the complaint is subject to
2

being summarily dismissed for the following reasons.
First, plaintiff’s claim for damages from the State of Kansas
is clearly barred by the Eleventh Amendment.

Absent consent, the

Eleventh Amendment bars a suit for damages against a state or state
agency.

Alabama v. Pugh, 438 U.S. 781, 782 (1978)).

This Eleventh

Amendment bar applies to actions brought under § 1983, Quern v.
Jordan, 440 U.S. 332, 345 (1979), and Kansas has not waived its
immunity from suits for damages under § 1983,

Beck v. Kansas Adult

Authority, 241 Kan. 13, 21 (1987).
Second, to state a claim under 42 U.S.C. § 1983, plaintiff must
allege a 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 (1988). It is well settled that court appointed
defense attorneys serve the interest of their client and do not act
"under color of state law" within the meaning of § 1983.
County

v.

plaintiff’s

Dodson,

454

U.S.

allegations

state

312,
no

325

(1981).

cognizable

claim

Polk

Accordingly,
for

damages

against defendant Colle under § 1983.

Nor does § 1983 provide any

basis

state

for

relief

for

violations

malpractice alleged by plaintiff.

of

torts,

such

as

the

See DeShaney v. Winnebago County

DSS, 489 U.S. 189, 201-03 (1989)(§ 1983 does not impose liability
for violations of duties of care arising out of state tort law).
Third, to the extent plaintiff seeks an injunction to require
the

state

court

to

appoint

substitute

counsel,

such

federal

intervention in an ongoing state criminal proceeding is barred by
the abstention doctrine which is based on comity and federalism
concerns.

See Younger v. Harris, 401 U.S. 37 (1971)(narrowly
3

proscribing

federal

injunctions

and

declaratory

interfere with on-going state criminal proceedings).

relief

that

No recognized

exception to the Younger doctrine is evident in the present case.
For these reasons the court finds it is patently obvious that
plaintiff cannot prevail on his claims, and concludes the complaint
should be summarily dismissed because it would be futile to give
plaintiff an opportunity to amend the complaint.

See Curley v.

Perry, 246 F.3d 1278, 1281-82 (10th Cir.), cert. denied, 534 U.S.
922 (2001).
IT IS THEREFORE ORDERED that plaintiff is granted leave to
proceed in forma paupers, with payment of the district court filing
fee to proceed as authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that the complaint seeking relief under
42 U.S.C. § 1983 is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS SO ORDERED.
DATED:

This 24th day of May 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

4