Hardaway v. Kansas, State of et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to submit an appropriate affidavit in support of his motion for leave to proceed in forma pauperis and to show cause why this action should not be dismissed. Plaintiff's motion 3 for appointment of counsel, motion 4 for hearing with grand jury, motion 5 to subpoena, and motion 6 requesting that President Obama authorize USAG Holder to represent him are denied. Plaintiff is required to specify what relief he seeks from the court in this action. Signed by Senior District Judge Sam A. Crow on 4/18/2011. (Mailed to pro se party Tyron L. Hardaway by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TYRON L. HARDAWAY,
Plaintiff,
v.

CASE NO.

11-3059-SAC

STATE OF KANSAS,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint, 42 U.S.C. § 1983, was filed pro se by a
former prison inmate currently residing in Hutchinson, Kansas.

As

a matter of factual background, the court takes judicial notice of
the case file in Hardaway v. McKune, No. 03-3438-MLB.

In that

petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254, Mr. Hardaway challenged his state conviction by a jury of
rape, for which he was sentenced in 1997 to prison for 146 months.
In 1999, his conviction was affirmed by the Kansas Court of Appeals
(KCA), and review was denied by the Kansas Supreme and the United
States Supreme Court in 2000.

Petitioner pursued other state post-

conviction remedies that were denied and affirmed by the KCA, and
review was denied by the Kansas Supreme Court in 2003.
habeas

petition

was

denied

in

2004,

and

his

His federal

request

for

a

Certificate of Appealability was denied by the Tenth Circuit Court
of Appeals and that appeal was dismissed in 2005.
Plaintiff names as defendants Judge Richard B. Walker, a
district court judge in McPherson County, Kansas; County Attorney
Tyrus Kauffman; and Deputy Attorney General J.S. Magg.

The court

assumes that defendants Walker and Kauffman were involved in Mr.

Hardaway’s prosecution for rape in McPherson County.

Plaintiff

claims that defendants Walker and Kauffman selectively prosecuted
him based upon his race.

He claims that defendant Walker withheld

information, committed perjury in “briefs and opinions” to “mislead
the Kansas appellate courts,” and created procedural hurdles to keep
plaintiff’s claims from being heard.

He also claims that Judge

Walker refused to hold a hearing “when he was threatened to be
killed by the KKK.”

Plaintiff claims that defendant Kauffman

violated his rights by intentionally putting false statements in
“it’s brief, committing perjury, in effort to mislead the appellate
courts.”

Mr. Jones does not specify what relief he seeks in this

action.

MOTION TO PROCEED WITHOUT FEES
Plaintiff has filed a motion to proceed in forma pauperis
(IFP), but has not submitted an affidavit in support of his motion
that includes “a statement of all assets (he) possesses” and that
actually indicates he is unable to pay the fees.

Plaintiff must

submit financial information to support his IFP motion or his motion
may be denied.
It is within the court’s discretion whether or not to authorize
commencement and prosecution of a civil lawsuit without prepayment
of fees.

28 U.S.C. § 1915(a)(1); Lewis v. Center Market, 378

Fed.Appx. 780, 784 (10th Cir. 2010)(unpublished, cited as persuasive
authority only)(citing 28 U.S.C. § 1915(a)). “[A] plaintiff seeking
to proceed IFP before the district court” must not only show “a
financial inability to pay the required filing fees,” but the
existence of a reasoned, nonfrivolous argument on the law and the
2

facts in support of the issues raised in the action” as well.
Lewis, 378 Fed.Appx. at 785 (citing Lister v. Dep’t of Treasury, 408
F.3d 1309, 1312 (10th Cir. 2005)).

The district court may deny IFP

status when the claims the plaintiff seeks to assert either fail to
state a claim upon which relief can be granted or are frivolous.1
See

Lewis,

378

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

Fed.Appx.

at

786

(citing

see

28

U.S.C.

§

It has reasonably been held that a person should

not be allowed to proceed IFP if his or her complaint is “so lacking
in specific facts that the court must invent factual scenarios which
cannot be inferred from the pleadings.”

See Luedtke v. Gudmanson,

971 F.Supp. 1263 (E.D. Wisc. 1997)(citing Smith-Bey v. Hospital
Administrator, 841 F.2d 751, 758 (7th Cir. 1988)).

SCREENING
Because plaintiff seeks to proceed IFP, the litigation process
begins with the court screening his complaint. See Lister, 408 F.3d
at 1312 (Section 1915(a) applies to all persons applying for IFP
status,

and

not

just

to

prisoners

despite

use

of

the

phrase

"prisoner possesses," and 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 that the action is “‘frivolous or
1

The Tenth Circuit discussed screening standards in Lewis:

The Supreme Court recently held:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.
Id. at 787.

3

malicious [or] fails to state a claim on which relief may be
granted;’ or makes a claim for monetary relief from an immune
party.”); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th
Cir. 1997)(In contrast to 28 U.S.C. § 1915A, § 1915(e) is not
restricted to actions brought by prisoners), overruled on other
grounds by Jones v. Bock, 549 U.S. 199 (2007)); Lopez v. Smith, 203
F.3d

1122,

1126

(9th

Cir.

2000)(Although

in

forma

pauperis

provisions in the PLRA were intended to cut down on prisoner
lawsuits, § 1915(e) applies to all IFP complaints, not just those
filed by prisoners.).2
forma pauperis.”

Section 1915 is entitled “Proceedings in

In contrast to § 1915A, which expressly applies

only to actions filed by prisoner litigants, § 1915(e)(2) does not
contain language indicating that it only applies to actions filed by
prisoners.

The Tenth Circuit has frequently cited 28 U.S.C. §

1915(e)(2)(B) when dismissing litigants’ claims as frivolous, even
where the litigants were not prisoners within the meaning of the
PLRA.

See e.g., Merryfield v. Jordan, 584 F.3d 923, 926 (10th Cir.

2009)(affirming dismissal of nonprisoner’s complaint as frivolous
and as stating no claim for relief, pursuant to 28 U.S.C. §

2

The Ninth Circuit Court of Appeals explained in Lopez:
The PLRA contains several provisions that require district
courts to screen lawsuits filed by prisoners and to dismiss
those suits sua sponte under certain circumstances.
Among
these provisions is section 804(a)(5), which is codified as
part of the in forma pauperis statute at 28 U.S.C. §
1915(e)(2). The other provisions are codified at 28 U.S.C. §
1915A and 42 U.S.C. § 1997e(c). While section 1915(e) applies
to all in forma pauperis complaints, section 1915A applies only
to actions in which a prisoner seeks redress from a
governmental entity or employee. Section 1997e(c) applies to
prisoner complaints specifically challenging prison conditions.
All three of the provisions direct district courts to dismiss
a complaint that fails to state a claim upon which relief may
be granted.

Id.

4

1915(e)(2)(B)(i) and (ii)); Ruston v. Church of Jesus Christ of
Latter-Day

Saints,

1915(e)(2)(B)

304

dismissal

Fed.Appx.
of

666

(10th

non-prisoner’s

Cir.

frivolous

2008)(§

complaint)

(citing cases)(unpublished opinions not cited as binding precedent
but for persuasive value, Fed.R.App.P. 32.1 and 10th Cir.R. 32.1);
Lewis, 378 Fed.Appx. at 785 (dismissal of non-prisoner’s civil
lawsuits

under

Wholesale,

280

§

1915(e)(2)(A)

Fed.Appx.

738

affirmed);

(10th

Cir.

Jamison

v.

Costco

2008)(dismissing

non-

prisoner complaint under Americans with Disabilities Act under §
1915); Hafen v. Carter, 274 Fed.Appx. 701 (10th Cir. 2008); Azubuko
v. New Hampshire, 175 Fed.Appx. 975 (10th Cir. 2006); see also
Michau v. Charleston County, S.C., 434 F.3d 725, 728 (4th Cir.),
cert. denied, 548 U.S. 910 (2006)(affirming the district court’s
dismissal of two complaints pursuant to § 1915(e)(2)(B), even though
the

plaintiff

was

not

a

prisoner,

because

the

plaintiff

was

proceeding in forma pauperis); Lopez, 203 F.3d at 1129; Kane v.
Lancaster County Dept. of Corrections, 960 F.Supp. 219, 221-22
(D.Neb.

1997)(interpreting

28

U.S.C.

§

1915(e)(2)(B)(i)

“to

authorize preanswer screening of nonprisoner in forma pauperis
complaints for the purpose of deciding whether the complaint is
frivolous or malicious”).

Accordingly, the fact that plaintiff

filed his action while a non-prisoner does not prevent this court
from performing a § 1915(e)(2) analysis.

Having screened the

materials filed by plaintiff, the court concludes that the complaint
should be dismissed for reasons that follow.

FAILURE TO STATE SUFFICIENT FACTS AND IMMUNITY

5

Plaintiff’s claims against Judge Walker are subject to being
dismissed for two reasons. First, he alleges no facts whatsoever to
support any of his claims against this defendant.

Plaintiff must

allege facts, including dates and circumstances, and describe acts
taken by each defendant.

Mr. Hardaway’s allegations are nothing

more than conclusory statements, which are not sufficient to state
a claim.
In any event, judges are absolutely immune from liability for
damages in civil rights suits based upon actions taken in their
judicial capacity.

See Mireles v. Waco, 502 U.S. 9, 11-12 (1991);

Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17
F.3d 1263, 1266-67 (10th Cir. 1994).

It appears that plaintiff is

attempting to sue Judge Walker for damages based upon actions taken
by the judge while he presided over plaintiff’s state criminal
proceedings.

If that is plaintiff’s intent, then this action is

frivolous and must be dismissed under 28 U.S.C. § 1915(e)(2)(B)(iii)
as seeking monetary relief from a defendant who is immune from such
relief.
The same is true as to defendant County Attorney Kauffman.

No

facts are alleged to support any of plaintiff’s claims against this
defendant.

Furthermore, a prosecutor is also immune to suit for

money damages for actions taken within the scope of his duties in
prosecuting a criminal case. Imbler v. Pachtman, 424 U.S. 409, 41819 (1976)(A prosecutor, acting within the scope of her duties in
initiating and prosecuting a case, has absolute immunity from
liability for damages under § 1983); Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993)(“[A]cts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which
6

occur in the course of his role as an advocate for the State, are
entitled to the protections of absolute immunity.”); Hunt, 17 F.3d
at 1267.
Plaintiff’s claim against J.S. Magg, if any, is subject to
dismissal for the reason that he does not state one allegation of
fact as to any actions by defendant Magg.

STATUTE OF LIMITATIONS
Moreover, it plainly appears from the face of the complaint
that most if not all of plaintiff’s claims are barred by the
applicable statute of limitations.

The statute of limitations

applicable to § 1983 actions is determined by looking at the
appropriate state statute of limitations and governing tolling
principles.

See Hardin v. Straub, 490 U.S. 536, 539 (1989).

“The

forum state’s statute of limitations for personal injury actions
governs civil rights claims under both 42 U.S.C. § 1981 and § 1983.”
Brown v. Unified School Dist. 501, Topeka Public Schools, 465 F.3d
1184, 1188 (10th Cir. 2006); Roberts v. Barreras, 484 F.3d 1236,
1238 (10th Cir. 2007); see United States v. Kubrick, 444 U.S. 111,
120 (1979)(“[An] action brought pursuant to 42 U.S.C. § 1983, is
subject to the statute of limitations of the general personal injury
statute in the state where the action arose.”).

In Kansas, that is

the two-year statute of limitations in K.S.A. § 60-513(a). Brown,
465 F.3d at 1188; Johnson v. Johnson County Comm’n Bd., 925 F.2d
1299, 1301 (10th Cir. 1991).

Thus, the statute of limitations for

a § 1983 action in Kansas is two years.

While state law governs the

length of the limitations period and tolling issues, “the accrual

7

date of a § 1983 cause of action is a question of federal law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007); Fratus v. DeLand, 49 F.3d
673, 675 (10th Cir. 1995).

Under federal law, the claim accrues

“when the plaintiff has a complete and present cause of action.”
Id.

In other words, “[a] § 1983 action accrues when facts that

would support a cause of action are or should be apparent.”

Fogle

v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)(internal quotation
marks and citation omitted); see Thorpe v. Ancell, 367 Fed.Appx.
914, (10th Cir. 2010)(unpublished, cited as persuasive authority
only).

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, 435
F.3d at 1258-59 (citing Jones v. Bock, 549 U.S. 199, 214 (2007)),
cert. denied, 549 U.S. 1059 (2007); see Fratus, 49 F.3d at 674-75
(district court may consider affirmative defenses sua sponte when
the defense is obvious from the face of the complaint.).
Mr. Hardaway’s state criminal proceedings were concluded before
2003, and his state post-conviction proceedings were concluded in
2003.

It is thus obvious that any events or acts of defendants

taken in connection with his state prosecution occurred prior to
2003.

Plaintiff’s cause of action thus accrued sometime in 2003 or

before, and the two-year statute of limitations began running under
Kansas law at that time.

It follows that if, as the court assumes,

plaintiff is attempting to sue defendants based upon actions taken
by each of them in connection with his state prosecution, those
claims are time-barred. The statute of limitations has expired with
respect to any events that occurred more than two years prior to the
filing of Mr. Hardaway’s complaint in March 2011.
8

In other words,

he may not sue upon claims based on events that took place prior to
March 8, 2009.

Plaintiff has not alleged facts suggesting that he

would be entitled to statutory or equitable tolling.

He will be

given time to show cause why these claims should not be dismissed as
barred by the applicable statute of limitations.

HABEAS CORPUS CLAIMS
To the extent that Mr. Hardaway may be seeking a judgment
invalidating his state conviction for rape, a habeas corpus petition
is the appropriate remedy.

However, it appears that he has been

released and is no longer in custody by reason of that conviction.
If

he

does

not

meet

the

“in

custody”

requirement,

challenge his conviction in a habeas corpus action.

he

cannot

Even if he can

establish that he is still in custody on the rape conviction, any
challenge to that conviction would be “second and successive,” since
he already litigated a § 2254 habeas corpus petition on this
conviction.

This means that he must obtain authorization from the

Tenth Circuit Court of Appeals before he may file another § 2254
petition in federal district court.
Mr. Hardaway shall be given time to show cause why this action
should not be dismissed for the reasons stated herein, including
that he fails to state facts sufficient to support a federal
constitutional claim, his allegations are legally frivolous, and his
claims are barred by the statute of limitations.

If he fails to

adequately respond within the time allotted, this action may be
dismissed without further notice.

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OTHER MOTIONS
Plaintiff has also filed a Motion for Appointment of Counsel
(Doc. 3), a “Motion for Hearing With Grand Jury” (Doc. 4), a “Motion
to Supena (sic)” (Doc. 5), and a Motion requesting that President
Obama

authorize

U.S.

Attorney

General

(USAG)

Eric

Holder

to

represent him in this case (Doc. 6).
Plaintiff’s Motion for Appointment of Counsel is denied. There
is no constitutional right to appointment of counsel in a federal
civil rights lawsuit.

The complaint is deficient, and appointment

of counsel at this juncture appears to be unwarranted.

Plaintiff’s

motion requesting that President Obama authorize USAG Holder to
represent him in this case is frivolous and is denied.
cannot rule on requests to President Obama.
a grand jury hearing is also denied.

The court

Plaintiff’s Motion for

Mr. Hardaway presents no

factual or legal basis for this court to order a grand jury hearing.
Plaintiff seeks to subpoena the following “witnesses” to show that
defendants

committed

perjury

and

selectively

prosecuted

him:

President Obama, U.S. Senator Lehey, a U.S. Representative Issa, Mr.
Myles “with the Wichita NAACP,” defendant Walker and defendant Magg.
Unless plaintiff can show that this action should not be dismissed
for the reasons stated herein, the action will be dismissed.
motion to subpoena witnesses is thus premature.
alleges

no

facts

showing

that

the

named

persons,

His

Moreover, he
other

than

defendants, could provide any relevant information.
IT IS THEREFORE ORDERED that plaintiff is given thirty (30)
days in which to submit an appropriate affidavit in support of his
motion for leave to proceed in forma pauperis and to show cause why

10

this action should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that plaintiff’s Motion for Appointment
of Counsel (Doc. 3), Motion for Hearing With Grand Jury (Doc. 4),
Motion to Subpoena (Doc. 5), and Motion requesting that President
Obama authorize USAG Holder to represent him (Doc. 6) are denied.
IT IS FURTHER ORDERED that plaintiff is required to specify
what relief he seeks from the court in this action.
The clerk is directed to send plaintiff forms for an IFP motion
filed by a non-prisoner.
IT IS SO ORDERED.
Dated this 18th day of April, 2011, at Topeka, Kansas.

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

11