Heistand v. Coleman et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $28.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice. Within the same thirty (30) days, plaintiff must cure the deficiencies in his complaint or show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 4/14/2011. (Mailed to pro se party Kenny W. Heistand by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNY W.
HEISTAND,
Plaintiff,
v.

CASE NO.

11-3040-SAC

HAROLD COLEMAN,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil rights complaint, 42 U.S.C. § 1983, was filed pro se
by an inmate of the Lansing Correctional Facility, Lansing, Kansas
(LCF). The named defendants are “Bourbon County, Kansas”; employees
of Bourbon County Sheriff’s Department: Sheriff Harold Coleman,
Deputy Sheriff Ron Gray, Deputy Michael Feagins, Deputy Dion O’Dell;
and employees of the Bourbon County Jail: Corrections Officer (CO)
Jimmy Nichols; CO Elbert Parker; Darrell Spencer, Director of
Security.

FACTUAL ALLEGATIONS AND BACKGROUND
As factual support for his complaint, Mr. Heistand discusses
various criminal charges that have been brought against him in
Bourbon County, Kansas, and refers to six different state district
court cases.

Case No. 05CR33 involved his arrest for misdemeanor

battery and assault in January 2005.
were subsequently dismissed.

He alleges that these charges

Case No. 05CR47 involved charges for

drug possession, which he alleges arose from defendants planting
drugs upon him during his arrest in the prior case.

He states that

these charges were subsequently dismissed. Case No. 05CR71 involved
charges of criminal sexual abuse for which plaintiff was arrested in
February 2005.

He alleges that the victim fabricated the charges

and the investigation by defendants was a “complete sham.”

He does

not provide facts as to the ultimate disposition of these charges.
Case No. 08CR20 apparently culminated from events that occurred in
August 2006, when defendant CO Parker shot plaintiff with a taser
and allegedly fabricated allegations to justify this use of force.
Plaintiff was charged with “Battery on LEO” in January 2008, and
that this charge was subsequently dismissed.
On-line
Corrections

records
offenders

on

the

status

indicate

that

of

Kansas

plaintiff

Department
has

two

of

active

sentences: Case No. 05CR82 in which he was convicted of Battery
Against Correctional Officer and Case No. 05CR130 in which he was
convicted

of

Traffic

Plaintiff

alleges

Contraband

that

Case

No.

-

Correctional

05CR82

involved

Institution.
a

physical

altercation between defendant Nichols and plaintiff in his cell on
in February 2005.

He alleges that Nichols hit him in the face, and

then falsified reports to say that plaintiff struck him, causing
plaintiff to be charged with battery on a law enforcement officer.
Plaintiff alleges that Case No. 05CR130 involved defendant Nichols
allegedly planting contraband in plaintiff’s cell, which led to
plaintiff

being

charged

correctional institution.

with

trafficking

contraband

into

a

He also alleges that defendants Nichols

and O’Dell gave false testimony at the preliminary hearing and
trial.

CLAIMS
2

Plaintiff makes numerous general allegations including that
“Bourbon County law enforcement, corrections officers and unnamed
coconspirators” conspired “to fabricate allegations, manufactured,
concealed

exculpatory

evidence,

prosecute and convict plaintiff.”

falsify

charges,

maliciously

He sets forth 15 counts, many

with repetitive, conclusory allegations and claims. He asserts that
defendants conspired to deprive him of his constitutional rights to
due process, a fair trial, access to the courts and counsel, and to
be free from unreasonable seizure and cruel and unusual punishment.
He also asserts false arrest, malicious prosecution, failure to
investigage, fraudulent investigations, mishandling and fabrication
of evidence, suppression of exculpatory evidence, and wrongful
conviction and imprisonment. He claims investigations were designed
to prove a case against him despite his actual innocence. Plaintiff
also generally claims failure to properly train, instruct, and
sanction employees with regard to use of police power, investigation
and interrogation, initiation of criminal charges, accurate and
truthful testimony in criminal cases, and prosecution of alleged
crimes in the State of Kansas.

In addition he claims failure to

take remedial action against known pattern of misconduct. Plaintiff
also generally asserts that Bourbon County policies, practices, and
customs deprived him of his constitutional rights; and that, at a
minimum, supervisors and “the government units” were deliberately
indifferent to constitutional violations. He claims that the County
acted in concert with the Correctional Officers and the Sheriff’s
Department, and that the “overt acts” were continuing in nature.
More specific allegations by plaintiff include that defendant
Nichols enticed another inmate to snitch and fabricate testimony
3

against plaintiff, and that exculpatory evidence was withheld and
mishandled that included recordings of plaintiff’s discussions with
the inmate that testified against him at trial.

Heistand also

complains of mental health screening and alleges that a mistrial was
declared,

he

was

sent

to

Larned

State

Hospital

for

a

mental

evaluation, and that case was subsequently dismissed.

Plaintiff

further

counsel’s

alleges

that

defendants

interfered

with

ability to provide effective assistance of counsel.
this

claim,

he

alleges

that

the

defendants

his

In support of
monitored

his

discussions at the jail with his attorney regarding his criminal
cases “on numerous occasions” and interfered with his attempts to
contact his attorney by phone.

He also claims that in May 2005

defendants listened in on his conversations with his investigator.
He alleges that judicial complaints were falsely filed against his
retained attorney and his investigator, his attorney withdrew, and
he had to rely on court-appointed counsel.1
Plaintiff claims that defendants’ acts caused him to be falsely
prosecuted, and imprisoned for six years with the resulting loss of
his freedom, companionship, and income.

He also claims he has

suffered severe emotional distress, humiliation, anguish, financial
loss, damage to his reputation, physical and mental pain, and fear.
He seeks compensatory damages and punitive damages.

MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES

1
The court takes judicial notice of a prior case filed by Mr. Heistand
in this court in which he complained about interference with his counsel. See
Heistand v. Coleman, et al., Case No. 08-3239-CM (D.Kan. March 25, 2010)(dismissal
with prejudice). Plaintiff may not raise any claims herein that were already
litigated in his prior case.

4

Plaintiff has filed a motion for leave to proceed in forma
pauperis (Doc. 2), and has attached an Inmate Account Statement in
support as statutorily mandated.

Under 28 U.S.C. § 1915(b)(1), a

plaintiff granted such leave is not relieved of the obligation to
pay the full fee of $350.00 for filing a civil action.

Instead,

being granted leave to proceed in forma pauperis merely entitles an
inmate to proceed without prepayment of the full fee, and to pay the
filing fee over time through payments deducted automatically from
his

inmate

1915(b)(2).2

trust

fund

account

as

authorized

by

28

U.S.C.

§

Furthermore, § 1915(b)(1), requires the court 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 examined the records

of plaintiff’s account, the court finds the average monthly deposit
to plaintiff’s account has been $ 140.92, and the average monthly
balance has been $ 70.24.

The court therefore assesses an initial

partial filing fee of $ 28.00, twenty percent of the average monthly
deposit, rounded to the lower half dollar.

Plaintiff must pay this

initial partial filing fee before this action may proceed further,
and will be given time to submit the fee to the court.

His failure

to submit the initial fee in the time allotted may result in
dismissal of this action without further notice.

2

Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is confined will be directed to collect 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 will be
directed to cooperate fully with his custodian in authorizing disbursements to
satisfy the filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian to disburse funds
from his account.

5

SCREENING
Because Mr. Heistand is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B).
A court liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

Nevertheless, a pro se

without

supporting

factual

averments are insufficient to state a claim upon which relief can be
based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The

court “will not supply additional factual allegations to round out
a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”
1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
The court employs the same standard for dismissal under §

1915(e)(2)(B)(ii) as that used for motions to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6).
Cir.

2007).

To

Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th

avoid

dismissal,

the

complaint’s

“factual

allegations must be enough to raise a right to relief above the
speculative level.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007)(citation omitted).

Put another way, there must be

“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

The court accepts all well-pleaded allegations

in the complaint as true and considers them in the light most
favorable to the nonmovant.
(10th Cir. 2006).

Anderson v. Blake, 469 F.3d 910, 913

“[W]hen the allegations in a complaint, however
6

true, could not raise a claim of entitlement to relief,” dismissal
is appropriate. Twombly, 550 U.S. at 558. The complaint must offer
“more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”

Id. at 555.

Having screened all

materials filed, the court finds the complaint is subject to being
dismissed for the following reasons.

CLAIMS BASED UPON DISMISSED CHARGES
With respect to those charges in four distinct state criminal
cases that Mr. Heistand alleges were dismissed and did not result in
convictions, he has not alleged sufficient facts to show a plausible
claim to relief.

He does not provide the dates upon which each

criminal proceeding was terminated in his favor or the circumstances
that led to each dismissal.

The dismissal of charges, standing

alone, does not establish that the arrest was false or that the
prosecution was malicious.3

For example, if the arrest was upon

probable cause, or the dismissals were part of a plea agreement,
were during or after trial on the charges, or were followed by a
refiling of those charges, then it is not plausible that plaintiff
can show a federal constitutional violation.

3

Plaintiff also fails

“A § 1983 malicious prosecution claim requires the following elements:
‘(1) the defendant caused the plaintiff’s continued confinement or prosecution;
(2) the original action terminated in favor of the plaintiff; (3) there was no
probable cause to support the original arrest, continued confinement, or
prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained
damages’.” See Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008); Thorpe, 367
Fed.Appx. at 920 (citing Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th
Cir. 2007)). “The plaintiff has the burden of proving a favorable termination.”
Wilkins, 528 F.3d at 803 (citing Washington v. Summerville, 127 F.3d 552, 557 (7th
Cir. 1997)).
To establish a malicious-prosecution claim under § 1983, the
plaintiff must show that there was a seizure, that is arrest or imprisonment, and
that the defendant initiated or continued a proceeding against him without
probable cause. See Becker v. Kroll, 494 F.3d 904, 913-915 (10th Cir. 2007).
“Unlike a false arrest or false imprisonment claim, malicious prosecution concerns
detention only after the institution of legal process.” Wilkins, 528 F.3d at 798
(internal quotation omitted).

7

to allege facts showing the personal participation of each named
defendant in the numerous complained-of acts.

Mr. Heistand will be

given time to allege additional facts, rather than conclusory
allegations, sufficient to state a federal constitutional violation
and to show the personal participation of each named defendant taken
in connection with each dismissed charge.
In any event, it plainly appears from the face of the complaint
that most if not all of Mr. Heistand’s claims on dismissed charges
are barred by the applicable statute of limitations. The statute of
limitations applicable to §§ 1983 and 1985 actions is determined
from looking at the appropriate state statute of limitations and
governing tolling principles.
539 (1989).

See Hardin v. Straub, 490 U.S. 536,

“The forum state’s statute of limitations for personal

injury actions governs civil rights claims under both 42 U.S.C. §
1981 and § 1983.

In Kansas, that is the two-year statute of

limitations in Kan.Stat.Ann. § 60-513(a).”

Brown v. Unified School

Dist. 501, Topeka Public Schools, 465 F .3d 1184, 1188 (10th Cir.
2006)(citations omitted); see United States v. Kubrick, 444 U.S.
111, 120 (1979); Johnson v. Johnson County Comm’n Bd., 925 F.2d
1299,

1301

(10th

Cir.

1991).

The

same

two-year

limitations governs actions under 42 U.S.C. § 1985.

statute

of

See Alexander

v. Oklahoma, 382 F.3d 1206, 1212 (10th Cir.), rehearing denied, 391
F.3d 1155 (10th Cir. 2004), cert. denied, 544 U.S. 1044 (2005).
Under K.S.A. § 60-514 there is a one-year statute of limitation for
claims

of

malicious

prosecution,

false

arrest,

and

false

imprisonment.
While state law governs the length of the limitations period
and tolling issues, “the accrual date of a § 1983 cause of action is
8

a question of federal law.”
(2007).

Wallace v. Kato, 549 U.S. 384, 388

Under federal law, the claim accrues “when the plaintiff

has a complete and present cause of action.”
quotation marks and citation omitted).

Id. at 388 (internal

In other words, “[a] § 1983

action accrues when facts that would support a cause of action are
or should be apparent.” Fogle, 435 F.3d at 1258 (internal quotation
marks and citation omitted); see Thorpe v. Ancell, 367 Fed.Appx.
914, (10th Cir. 2010)(unpublished).

A district court may dismiss a

complaint filed by an IFP plaintiff if it is patently clear from the
allegations as tendered that the action is barred by the statute of
limitations.

Fogle v. Pierson, 435 F.3d 1252, 1258-59 (10th

Cir.2006)(citing Jones v. Bock, 549 U.S. 199, 214 (2007)), cert.
denied, 549 U.S. 1059 (2007); Hawkins v. Lemons, No. 09-3116-SAC,
2009 WL 2475130, at *2 (D.Kan. Aug. 12, 2009).
Most of the acts complained of in the complaint in connection
with dismissed charges must have occurred in 2005 or before, since
all but one of the dismissed charges were in 2005 criminal cases.4
Plaintiff’s claims based upon these acts therefore appear to have
accrued sometime in 2005, and the two-year statute of limitations
began running under Kansas law at that time.

It thus appears that

any events or acts of defendants taken in connection with the
dismissed charges took place more than two years prior to the filing
of plaintiff’s complaint and are time-barred. See Fratus v. Deland,
49 F.3d 673, 674-75 (10th Cir. 1995)(district court may consider
affirmative defenses sua sponte when the defense is obvious from the
face of the complaint.).

The same is true as to plaintiff’s 2008

4

Plaintiff’s bald statement that defendants’ acts are “continuing in
nature” is not sufficient to extend the limitations period.

9

case, if it was dismissed.

The statute of limitations has expired

with respect to Mr. Heistand’s claims based on events in connection
with dismissed charges that occurred prior to February 9, 2009.
Plaintiff does not allege facts suggesting that he would be entitled
to statutory or equitable tolling.
Likewise,

plaintiff’s

claims

of

false

arrest,

false

imprisonment, and malicious prosecution appear to be barred by the
applicable one-year statute of limitations. Thus, if the charges on
which these claims are based were dismissed prior to February 9,
2010, as appears likely, then plaintiff’s claims based upon those
events are barred by the one-year statute of limitations. Plaintiff
will be given time to show cause why these claims should not be
dismissed as barred by the applicable statute of limitations.

CHALLENGES TO CONVICTIONS
With respect to those charges upon which Mr. Heistand was
actually convicted, any of his claims that call into question the
validity of his outstanding convictions are premature under Heck v.
Humphrey,

512

U.S.

477

(1994).

The

Supreme

Court

in

Heck,

established a rule of “deferred accrual” for some actions:
[I]n
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C. §
2254. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is
not cognizable under § 1983.
Id. at 486-487 (footnote omitted); see Wallace v. Kato, 549 U.S.
10

384, 392-393 (2007). The Court in Wallace elucidated “that the Heck
rule for deferred accrual is called into play only when there exists
‘a conviction or sentence that has not been . . . invalidated,’ that
is to say, an ‘outstanding criminal judgment.’ It delays what would
otherwise be the accrual date of a tort action until the setting
aside of an extant conviction which success in that tort action
would impugn.”

Id. at 393.

In Heck, the Supreme Court held that

when a prisoner seeks damages in a suit filed pursuant to 42 U.S.C.
§ 1983, “the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.”

Heck, 512 U.S. at 487 (damages).

Mr. Heistand’s claims regarding his active cases clearly impugn
the validity of those state court convictions, which have not been
overturned.
improper

Because judgment for damages on plaintiff’s claims of

investigations,

fabricated

evidence,

false

testimony,

withholding and mishandling of evidence, and interference with
counsel

would

necessarily

imply

the

invalidity

of

plaintiff’s

convictions in 05CR82 and 05CR130, these claims will not accrue, and
are therefore barred, unless and until Mr. Heistand achieves a
favorable termination by having those convictions reversed through
proper process.

See Heck v. Humphrey, 512 U.S. at 487; Roth v.

Green, 466 F .3d 1179, 1189-90 (10th Cir. 2006), cert. denied, 552
U.S. 814, (2007).

Accordingly, all plaintiff’s claims for relief

that challenge the initiation of charges, the investigation, his
arrest, the testimony and other evidence, and the trials leading to
those convictions must be dismissed without prejudice under Heck.
11

See Parris v. United States, 45 F.3d 383, 384 (10th Cir. 1995)
(dismissing

federal

civil

claims

pursuant

to

Heck

where

the

plaintiff alleged that the government’s evidence was fabricated and
that the prosecution witnesses committed perjury); Ames v. Oklahoma,
158 Fed. Appx. 114, 117 (10th Cir. 2005) (Heck applied to bar
inmate’s 1983 claim of illegal confinement based upon allegations of
use of false testimony, planted evidence and the destruction of
favorable evidence).
Furthermore, even though plaintiff requests money damages only,
his

claims

regarding

his

active

cases,

including

that

he

is

wrongfully incarcerated and is innocent, are in the nature of habeas
corpus challenges to his state convictions. It is well-settled that
review of the validity of state convictions may be had in federal
court only by way of the filing of a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, and that before plaintiff may
obtain federal habeas review, he must have fully exhausted all
available state court remedies.5
Plaintiff is given time to pay the assessed initial partial
filing fee and cure the foregoing deficiencies in his complaint. If
he fails to adequately respond within the time provided, this action
may be dismissed without further notice.
The

court

notifies

Mr.

Heistand

that

if

his

claims

are

dismissed as barred by the statute of limitations and by Heck, the
dismissal will be for failure to state a claim and this action will

5
The court notes that the filing of a § 2254 petition at this time by
Mr. Heistand might be second and successive, in which event he is required to
first obtain authorization from the Tenth Circuit Court of Appeals.

12

constitute a strike for purposes of 28 U.S.C. § 1915(g).6

See Smith

v. Veterans Administration, ___F.3d___, *5, 2011 WL 692969 (10th Cir.
2011)(and cases cited therein).
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 28.00.

Any objection to this order must be filed on or before

the date payment is due.

The failure to pay the fees as required

herein may result in dismissal of this action without prejudice.
IT IS FURTHER ORDERED that within the same thirty (30) days,
plaintiff must cure the deficiencies in his complaint or show cause
why this action should not be dismissed for the reasons stated
herein.
IT IS SO ORDERED.
Dated this 14th day of April, 2011, at Topeka, Kansas.

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

6

Section 1915(g) of 28 U.S.C. provides:

In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court that
is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.
Id.

13