Adkins v. Armstrong et al

Filing 5

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to submit an amended complaint to avoid summary dismissal of this action. Plaintiff's motion 3 for appointmen t of counsel is denied without prejudice. Plaintiff's motion 4 for summary judgment is liberally construed as supplementing the complaint and in all other respects, is premature and denied without prejudice. Signed by Senior District Judge Sam A. Crow on 5/4/2011. (Mailed to pro se party Ebrahim Adkins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EBRAHIM ADKINS,
Plaintiff,
v.

CASE NO. 11-3053-SAC

RICK ARMSTRONG, et al.,
Defendants.

O R D E R
This matter comes before the court on a “Civil Rights Complaint
pursuant to 42 U.S.C. § 1983,” filed pro se by a resident of Kansas
City, Kansas.

Based upon plaintiff’s limited financial resources,

the court grants plaintiff’s motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915.
Plaintiff’s complaint is far from clear, but appears to center
on the Kansas City Municipal Court’s refusal to file motions
submitted by plaintiff in January 2011 in four cases plaintiff
identifies only by number.
are:

The defendants named in the complaint

Rick Armstrong as Chief of Police for Kansas City, Kansas;

Greg Lawson as an Internal Affairs Officer for Kansas City, Kansas;
Mike McLin and John Smith as Kansas Department of Revenue Vehicles
Administrators; Municipal Court Judge Aaron Roberts; and Wyandotte
County

District

Attorney

Jerome

Gorman.

Plaintiff

seeks

a

declaratory judgment that defendants violated his constitutional
rights, unspecified injunctive relief, reversal and remand of the

four municipal court cases, disciplinary action against defendants,
a restraining order to prevent future retaliation by defendants, and
compensatory and punitive damages.
Also before the court is plaintiff’s “Motion for Summary
Judgment” which identifies nine issues and includes (as issue ten)
plaintiff’s “amendment” of the complaint “to name all state actors
as private actors.”

The court liberally construes this pleading as

supplementing the complaint to clarify the issues being raised and
plaintiff’s naming of defendants in their “duel” [sic] capacity in
the original complaint.1
The court is to dismiss a case in which in forma pauperis
status has been granted if at any time the court determines the
action is “frivolous or malicious,” seeks relief “from a person
immune from such relief,” or “fails to state a claim for relief.”
28 U.S.C. § 1915(e)(2)(B).

Although plaintiff is no longer a

prisoner as defined in § 1915(h), § 1915(e)(2) applies to all
litigants, prisoners and non-prisoners alike.

See Lister v. Dept.

of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005)(28 U.S.C. §
1915(e)(2)(B) requires a district court to dismiss the complaint of
a party proceeding IFP whenever the court determines the action is
frivolous or malicious, fails to state a claim for relief, or seeks
damages from persons immune from such relief); Michau v. Charleston
County, S.C., 434 F.3d 725 (4th Cir.)(§ 1915(e) “governs IFP filings

1

Although plaintiff’s motion for summary judgment names only
Municipal Court Judge Aaron Roberts as a defendant, the court
liberally construes the caption as referencing all defendants named
in the complaint.
2

in addition to complaints filed by prisoners”), cert. denied, 548
U.S. 910 (2006).

See also Merryfield v. Jordan, 584 F.3d 923 (10th

Cir.2009)(affirming

dismissal

of

nonprisoner's

complaint

as

frivolous and as stating no claim for relief, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii)); Ruston v. Church of Jesus Christ of
Latter-Day Saints, 304 Fed.Appx. 666 (10th Cir.2008)(affirming
dismissal

of

nonprisoner’s

1915(e)(2)(B))(citing

frivolous

cases)(unpublished

complaint
opinion,

under

cited

not

§
as

binding precedent but for its persuasive value, Fed.R.App.P. 32.1
and 10th Cir.R. 32.1).
Reviewing plaintiff’s supplemented complaint, the court finds
it

is

subject

to

being

summarily

dismissed

pursuant

to

§

1915(e)(2)(B).
Plaintiff

identifies

his

issues

in

the

following

manner.

First, he states the court clerk refused to accept plaintiff’s
documents for filing because they were not presented in proper form
as required by court rules and practice, and contends he was thereby
denied his constitutional right to equal protection, due process,
and meaningful effective access to the courts.

Second, plaintiff

cites his award of Social Security Supplemental Income as legally
establishing his mental disability, and argues for a February 2010
accrual date for his claims.2

Third, plaintiff appears to claim he

2

This is an argument the court has previously rejected in other
cases filed by plaintiff. Moreover, the court fails to see how this
particular argument might be applicable to the core allegation in
the present case that plaintiff was not allowed to file documents in
the municipal court in January 2011.
3

was

not

provided

appointed

counsel

in

his

municipal

court

proceedings in violation of his Sixth Amendment right to effective
assistance of counsel.
legal

standards

for

Plaintiff’s fourth issue essentially cites
reviewing

claims

presented

by

litigants

proceeding pro se and in forma pauperis, but identifies no specific
claim.

Fifth, he basically argues the municipal court clerk’s

actions violated federal court rules. Sixth, plaintiff contends all
defendants conspired to deny plaintiff equal protection and due
process.

Seventh, plaintiff asserts he was denied his state

statutory right to appellate review, which thereby violated his
federal constitutional right to due process and equal protection.
Eighth, plaintiff appears to argue it was error to admit his
confession without determining whether it was knowing and voluntary
under

circumstances

impairment.

which

included

his

established

mental

And ninth, plaintiff contends his convictions are not

supported by constitutionally sufficient evidence.3
Although plaintiff’s pleadings are filled with recitations of
legal holdings in published court decisions, his allegations of
constitutional violations and bare references to conspiracy and
retaliation are conclusory at best, lacking sufficient factual
support to establish any plausible claim against any defendant upon

3

Because plaintiff provides no factual background, the court
tentatively presumes the allegations in plaintiff’s eighth and ninth
issues relate to one or more of the four municipal convictions cited
by plaintiff, and not to plaintiff’s previous convictions on 1999
and 2001 state drug charges.
4

which relief can be granted under § 1983.4
935

F.2d

1106,

1110

(10th

See Hall v. Bellmon,

Cir.1991)("[C]onclusory

allegations

without supporting factual averments are insufficient to state a
claim on which relief can be based.")(citing cases).

"[A] pro se

plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if
the court is to determine whether he makes out a claim on which
relief can be granted."

Id.

Although pro se pleadings are to be

liberally construed, a pro se litigant still must follow basic
procedural rules governing all litigants, and must make more than
mere conclusory statements regarding constitutional claims.

See

Brown v. Zavaras, 63 F.3d 967, 971-72 (10th Cir.1995); United States
v. Fisher, 38 F.3d 1144, 1147 (10th Cir.1994).
Nor does plaintiff provide any factual basis for establishing
any defendant’s personal participation in the alleged violation of
plaintiff’s constitutional rights.

“Individual liability under §

1983

involvement

must

be

based

on

personal

in

the

alleged

constitutional violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162
(10th Cir.2008)(quotation omitted).
To the extent plaintiff seeks relief on allegations of error in
his municipal court cases, his remedy lies in the state courts.
Section 1983 is not available to overturn a state conviction.

4

Plaintiff states only that the court clerk, not named as a
defendant in this action, refused to accept plaintiff’s documents
for filing because they were not presented in proper form as
required by court rules and practice. Plaintiff broadly maintains
he was thereby denied his constitutional right to meaningful and
effective access to the courts.
5

Preiser v. Rodriguez, 411 U.S. 475 (1973). Nor does this court have
jurisdiction to review a final state court judgment.

Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983).

If any of plaintiff’s

municipal court cases are not yet final, plaintiff identifies no
exceptional

circumstances

that

might

warrant

intervention in a state court proceeding.

this

court’s

Younger v. Harris, 401

U.S. 37, 43 (1971).
Additionally,

plaintiff’s

prayer

for

damages

against

the

municipal court judges named as a defendant is barred because judges
are protected by absolute immunity in civil rights action from
liability based on their judicial actions.

See Stump v. Sparkman,

435 U.S. 349, 362-64 (1978)); Whitesel v. Sengenberger, 222 F.3d
861, 867 (10th Cir.2000). Likewise, the Wyandotte County prosecutor
named as a defendant is entitled to absolute immunity for activities
intimately associated with the judicial phase of a criminal process.
Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
Accordingly, the court grants plaintiff an opportunity to cure
the

deficiencies

identified

herein

by

submitting

complaint, and doing so on a court approved form.

an

amended

The failure to

comply in a timely manner may result in the instant complaint being
dismissed pursuant to § 1915(e)(2)(B) without further prior notice
to plaintiff.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20)
6

days to submit an amended complaint to avoid summary dismissal of
this action

pursuant to 28 U.S.C. § 1915(e)(2)(B) for the reasons

stated by the court.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of

counsel

(Doc.

3)

is

denied

without

prejudice,

and

that

plaintiff’s motion for summary judgment (Doc. 4) is liberally
construed as supplementing the complaint, and in all other respects
is premature and denied without prejudice.
The clerk’s office is to provide plaintiff with a court
approved form for filing a civil action under 42 U.S.C. § 1983.
IT IS SO ORDERED.
DATED:

This 4th day of May 2011 at Topeka, Kansas.

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

7