Burnett v. Kansas, State of

Filing 9

ORDER ENTERED: The amended complaint is dismissed as stating no claim for relief and dismissal of plaintiff's claims against defendants Kelly and Page are dismissed without prejudice. Signed by Senior District Judge Sam A. Crow on 1/5/2012. (Mailed to pro se party Charles A. Burnett by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLES A. BURNETT,
Plaintiff,
v.

CASE NO. 10-3194-SAC

STATE OF KANSAS, et al.,
Defendants.

O R D E R
Plaintiff proceeds in forma pauperis on an amended complaint
seeking relief under 42 U.S.C. § 1983, filed while plaintiff was
confined as a pretrial detainee in the Atchison County jail.
Alleging misconduct related to his arrest, prosecution, and
confinement in the Atchison County jail, plaintiff seeks damages
from five defendants in his amended complaint: the State of Kansas,
Atchison County Jude Martin Asher, Atchison County Attorney Gerald
Kuckelman, Atchison Detective Terry Kelley, and Atchison Police
Officer Kuris Page. The court reviewed plaintiff’s allegations, and
on June 24, 2011, directed plaintiff to show cause why the amended
complaint should not be summarily dismissed as stating no claim for
relief.

28 U.S.C. § 1915(e)(2)(B)(ii).

The court found plaintiff's claim for damages against the State
of Kansas was barred by the Eleventh Amendment, and absolute
immunity barred plaintiff’s claim for damages against a state
district court judge and state prosecutor.

Alabama v. Pugh, 438

U.S. 781, 782 (1978); Stump v. Sparkman, 435 U.S. 349, 362-64
(1978); Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

The court

further found plaintiff’s allegations of misconduct against Officers
Kelly and Page essentially challenged the validity of the search
warrant and arrest underlying plaintiff’s present state conviction,
thus no cognizable claim for damages can arise until plaintiff
demonstrates that his conviction has been reversed, or otherwise
invalidated.

Heck v. Humphrey, 512 U.S. 477 486-87 (1994).

In response, plaintiff addresses issues concerning the show
cause order entered in his companion case, Burnett v. State of
Kansas, Case No. 10-3180-SAC, but provides no response to the show
cause order entered in the instant action other than to indicate his
direct appeal is pending before the Kansas Court of Appeals.1
Accordingly, for the reasons stated herein and in the show cause
order entered on June 24, 2011, the court dismisses the amended
complaint.
IT IS THEREFORE ORDERED that the amended complaint is
dismissed as stating no claim for relief, and that dismissal of
plaintiff’s claims against defendants Kelly and Page are dismissed
without prejudice.
IT IS SO ORDERED.
DATED:

This 5th day of January 2012 at Topeka, Kansas.

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

1

See State v. Burnett, Appeal No. 105159
consolidated appeal from his state conviction).
2

(plaintiff’s