Young v. Mendenhall et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This matter is dismissed for failure to state a claim up on which relief may be granted. Signed by Senior District Judge Sam A. Crow on 2/25/2011. (Mailed to pro se party David Lamont Young, II by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

DAVID LAMONT YOUNG, II, Plaintiff, vs. DANETTA F. MENDENHALL and MICHAEL J. BARTEE, CIVIL ACTION No. 10-3246-SAC

Defendants.

MEMORANDUM AND ORDER This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983 by a prisoner in the Johnson County Adult Detention Center. Plaintiff proceeds pro se, and the court grants

leave to proceed in forma pauperis.1

1

Plaintiff is advised that he remains obligated to pay the balance of the statutory filing fee of $350.00 in this action. The Finance Office of the facility where he is incarcerated will be directed by a copy of this order to collect from plaintiff's account and pay to the clerk of the court twenty percent (20%) of the prior month's income each time the amount in plaintiff's account exceeds ten dollars ($10.00) until the filing fee has been paid in full. Plaintiff is directed to cooperate fully with his custodian in authorizing disbursements to satisfy the filing fee, including providing any written authorization required by the custodian or any future custodian to disburse funds from his account.

In this action, plaintiff challenges the presentation of a criminal complaint by the defendant assistant district

attorney, and he claims that his defense counsel failed to investigate his allegations of violations to his Fourth Amendment rights and claims that his arrest and detention were unlawful. By its earlier order, the court directed plaintiff to

show cause why this matter should not be dismissed on the ground that it failed to state a claim for relief. The court's order explained that the defendant assistant district attorney enjoys absolute immunity from an action under § 1983 for action concerning the initiation of criminal charges and that the defendant defense attorney is not a state actor for purposes of § 1983. Plaintiff filed an objection (Doc. 5). First, he cites a

decision issued by the Kansas Court of Appeals that addressed a prosecutor's allegedly false affidavit used to support an

application for an arrest warrant2.

Plaintiff argues the police

reports in this case include statements from a person who was not present at the time of the crime and asserts that the reports contain erroneous statements.
2

He also argues that the

McCormick v. Board of County Com'rs of Shawnee County, 24 P.3d 739 (Kan. App. 2001), aff'd in part, rev'd in part, 35 P.3d 815 (Kan. 2001), cert. denied, McCormick v. Long, 537 U.S. 841 (2002). 2

defendant assistant district attorney is liable as a supervisor for the alleged errors in the reports. A prosecutor has absolute immunity from a suit for damages based on a decision to initiate a criminal prosecution, see Imbler v. Pachtman, 424 U.S. 409, 410 (1978) or on a decision not to prosecute. (10th Cir. See Meade v. Grubbs, 841 F.2d 1512, 1532-33 immunity for alleged failure to

1988)(absolute

initiate civil or criminal action against state officials for civil rights violations). This immunity applies to the preparation of charging

documents, including complaints and a motion for an arrest warrant, if the prosecutor is not "acting as a complaining witness rather than a lawyer when she executed the certification." Kalina v. Fletcher, 522 U.S. 118 (1997).

While plaintiff complains the police reports were erroneous, the defendant did not prepare the reports. Furthermore,

absolute prosecutorial immunity encompasses claims that the prosecutor "knowingly used false testimony and suppressed

material evidence." (1976).

Imbler v. Pachtman, 424 U.S. 409, 413

Finally, accepting plaintiff's assertion that the defendant assistant attorney had supervisory authority over the investigating officers, plaintiff's claim nevertheless fails, as a 3

defendant

may

not

be

held

liable

on

theory

of

respondeat

superior unless the plaintiff shows the defendant established or was responsible for the operation of a policy; that policy caused the constitutional deprivation alleged; and the defendant acted with the state of mind required to establish the constitutional deprivation. Dodds v. Richardson, 614 F.3d 1185, 1199Plaintiff has not alleged any facts to

1200 (10th Cir. 2010).

support such an assertion. Having considered the record, the court finds the actions of defendant Mendenhall in preparing and submitting the criminal complaint were taken in the role of an advocate initiating a criminal action. Therefore, the defendant is entitled to

absolute immunity, and the plaintiff has not stated a claim for relief against her. Next, plaintiff claims the defendant defense counsel is an officer of the court. rights under the He claims the defendant violated his Amendment by providing inadequate

Sixth

representation and contends that he should be liable for such violation. It is settled that a defense attorney, whether appointed by the court or privately retained, who serves as counsel for a defendant in a criminal proceeding does not act under color of state law. Rather, because such an attorney represents the 4

client, and not the interests of the state, the attorney is not a state actor and cannot be sued in an action brought under §1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981).

See also Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir. 1983)("private attorneys, by virtue of being officers of the court, do not act under color of state law within the meaning of section 1983.") Therefore, the complaint states no cognizable

claim against defendant Bartee. IT IS, THEREFORE, BY THE COURT ORDERED plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) is granted. Collection action shall continue pursuant to 28 U.S.C.

§1915(b)(2) until plaintiff satisfies the $350.00 filing fee. IT IS FURTHER ORDERED this matter is dismissed for failure to state a claim upon which relief may be granted. Copies of this Memorandum and Order shall be transmitted to the plaintiff and to the finance office of the facility where he is incarcerated. IT IS SO ORDERED. Dated at Topeka, Kansas, this 25th day of February, 2011.

S/ Sam A. Crow SAM A. CROW United States Senior District Judge 5