Mitchell v. Groh et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff is given twenty (20) days in which to submit a certified copy of his institutional account for the six months immediately preceding the filing of this complaint as required by statute to support his motion to p roceed without prepayment of fees. Within the same twenty-day period, plaintiff is required to advise the court of the status of any state parole revocation or criminal proceedings pending against him and to show cause why this action should not be dismissed. Plaintiff's motion 3 to appoint counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 4/15/2011. (Mailed to pro se party Marcus D. Mitchell by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARCUS D. MITCHELL,
Plaintiff,
v.

CASE NO.

11-3063-SAC

CITY OF WICHITA,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint, 42 U.S.C. § 1983, was filed pro se by an
inmate of the Sedgwick County Jail, Wichita, Kansas.

Plaintiff

names as defendants the City of Wichita, Kansas, and John Groh,
Wichita Police Officer (PO).
As the factual background for his complaint, Mr. Mitchell
alleges as follows.
over

by

defendant

On or about December 10, 2010, he was pulled
PO

Groh

for

not

signaling.

PO

Groh

then

discovered that plaintiff was driving while suspended and had a
“warrant for DOC” and a couple “other minor warrants.”

Groh

searched his vehicle and arrested him, but never gave him a ticket
or warning for the alleged traffic violation.

In an attached

affidavit, plaintiff states that he was arrested for a parole
violation.
Plaintiff claims that he was followed too long before the stop;
that the traffic stop was illegal; that the search of his car
without his consent violated the 4th Amendment; and that taking him
to jail after the illegal stop amounted to cruel and unusual
punishment. He also claims “harassment” and that he was pulled over
on account of his race.

He asserts that his rights under the 4th,

5th, 8th and 15th Amendments were violated.

He seeks millions of

dollars in damages.

MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
The fee for filing a civil rights complaint is $350.00.
Plaintiff has filed an Application to Proceed Without Prepayment of
Fees.

He is forewarned that under 28 U.S.C. §1915(b)(1), being

granted leave to proceed without prepayment of fees does not relieve
a plaintiff of the obligation to pay the full amount of the filing
fee.

Instead, it entitles him to pay the fee over time through

payments automatically deducted from his inmate trust fund account
as authorized by 28 U.S.C. §1915(b)(2).1

Furthermore, 28 U.S.C. §

1915 requires that a prisoner seeking to bring a civil action
without prepayment of fees submit a “certified copy of the trust
fund

account

statement

(or

institutional

equivalent)

for

the

prisoner for the 6-month period immediately preceding the filing” of
the action “obtained from the appropriate official of each prison at
which the prisoner is or was confined.”

28 U.S.C. § 1915(a)(2).

Mr. Mitchell’s application is deficient in that he has not
provided a certified copy of his institutional account transactions
for a six-month period. This action may not proceed until plaintiff
provides the financial information required by federal law. He will
be given time to do so, and is forewarned that if he fails to comply
with the provisions of 28 U.S.C. § 1915 in the time allotted, this
action may be dismissed without further notice.

1

The prisoner must

Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is currently confined would be authorized 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.

2

obtain this certified statement from the appropriate official of
each prison at which he was or is confined.

SCREENING
Because Mr. Mitchell 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).

Having screened all

materials filed, the court finds the complaint is subject to being
dismissed.
“To state a claim under section 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citing Parratt v. Taylor, 451 U.S.
527, 535 (1981), overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327, 330-331 (1986); Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155 (1978)); Northington v. Jackson, 973 F.2d 1518,
1523 (10th Cir. 1992).
complaint

and

applies

A court liberally construes a pro se
“less

pleadings drafted by lawyers.”
(2007).

stringent

standards

than

formal

Erickson v. Pardus, 551 U.S. 89, 94

Nevertheless, a pro se litigant’s “conclusory allegations

without supporting factual averments are insufficient to state a
claim upon which relief can be based.”
1106, 1110 (10th Cir. 1991).
factual

allegations

to

Hall v. Bellmon, 935 F.2d

The court “will not supply additional

round

out

a

plaintiff’s

construct a legal theory on a plaintiff’s behalf.”
3

complaint

or

Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

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).
v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).

Kay

To 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.
469 F.3d 910, 913 (10th Cir. 2006).

Anderson v. Blake,

“[W]hen the allegations in a

complaint, however 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.”
555.

Id. at

Having screened all materials filed, the court finds the

complaint is subject to being dismissed for the following reasons.
Defendant “City of Wichita” is subject to be dismissed.

Under

42 U.S.C. § 1983, a local government may be held liable for the
constitutional violation of its employees only when employee “action
pursuant to official municipal policy . . . caused a constitutional
tort.”

Therefore, “to establish municipal liability a plaintiff

must show (1) the existence of a municipal custom or policy and (2)
a direct causal link between the custom or policy and the violation
alleged.”

Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d

584, 592 (10th Cir. 1999)(quoting Hollingsworth v. Hill, 110 F.3d
733, 742 (10th Cir.1997)).

Plaintiff does not allege facts showing
4

that the City of Wichita had a policy or custom that violated his
federal constitutional rights.

City of Wichita cannot be held

liable under the doctrine of respondeat superior for the individual
actions of its employee.

As the Tenth Circuit has reasoned:

A municipality or county can be held accountable to a
pretrial detainee for a due process violation resulting
from an employee’s acts only if the harmful acts resulted
from a policy or custom adopted or maintained with
objective deliberate indifference to the detainee's
constitutional rights. See Monell v. Department of Social
Servs., 436 U.S. 658, 690-91, 694 (1978).
The plaintiff must . . . demonstrate that, through its
deliberate conduct, the municipality was the “moving
force” behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the
deprivation of federal rights.
Board of County Comm’rs
v. Brown, 520 U.S. 397, 404 (1997).
Aston

v.

Cunningham,

2000)(unpublished)(cited

216
as

F.3d

*4

(10th

Cir.

authority

only).

Mr.

1086,

persuasive

Mitchell has not alleged facts indicating that a policy, custom, or
practice of the City of Wichita played any part in the alleged
violations of his rights.
Plaintiff’s allegations against defendant Groh are also subject
to dismissal. Those allegations actually raise two discrete claims.
First, plaintiff claims that Officer Groh lacked authority to stop
him for not signaling.

Second, he claims that defendant Groh

wrongfully searched his vehicle, arrested him, and took him to jail.
Accepting plaintiff’s allegations as true, the court finds that his
allegations

fail

to

state

a

claim

of

federal

constitutional

violation.
With respect to plaintiff’s assertion that the traffic stop was
unlawful,

his

allegations

indicate
5

nothing

more

than

his

disagreement with Officer Groh’s account that he observed plaintiff
fail to signal properly.

That disagreement, without more, does not

evince a federal constitutional violation.

K.S.A. § 22-2402(l)

provides:
Without making an arrest, a law enforcement officer may
stop any person in a public place whom such officer
reasonably suspects is committing, has committed or is
about to commit a crime and may demand of the name,
address of such suspect and an explanation of such
suspect’s actions.
Id.

Traffic infractions are crimes under K.S.A. § 21-3105.

A

traffic violation provides a valid reason to effectuate a traffic
stop.

Whren

v.

U.S.,

517

U.S.

806,

813

(1996).

K.S.A.

§

8-2106(a)(1) provides that an officer “may” not “shall” issue a
citation for a violation of the laws regulating traffic.

Plaintiff

was not given a ticket or arrested for failure to signal, and is not
confined as a result of this alleged traffic infraction.

In short,

Mr. Mitchell’s claim that he was followed and stopped for an alleged
traffic violation but was not ticketed, standing alone, does not
establish that the stop was due to his race, amounted to racial
profiling, or otherwise violated his federal constitutional rights.
Plaintiff’s allegations of racial profiling are nothing more than
conclusory statements.
Plaintiff’s other allegations similarly fail to state a claim.
A law enforcement officer conducting a routine traffic stop may
request a driver’s license and vehicle registration, and run a
computer check. Had no warrants turned up, plaintiff must have been
allowed to proceed on his way, without further delay or questioning.
However, according to Mr. Mitchell’s own account, warrants were
discovered.

Plaintiff’s allegations indicate that he was arrested
6

and jailed based upon outstanding warrants, one of which was for
parole violation.

Under Kansas law a law enforcement officer may

arrest a person if the officer has probable cause to believe that a
warrant for his arrest has been issued.
Mitchell’s

arrest

and

confinement

K.S.A. § 22-2401(b).

were

not

an

Mr.

investigative

detention, and he alleges no facts to indicate that his detention on
an existing warrant was not authorized or reasonable. The existence
of a warrant established probable cause for his arrest.

Plaintiff

alleges that the search of his vehicle and his arrest were done
after the officer discovered the outstanding warrants.

Thus, they

presumably were incident to his arrest under the warrant, and not
the traffic stop.
Plaintiff does not allege that any exculpatory evidence was
found during the search of his vehicle or that he filed any motion
to suppress.

If he is claiming that the arrest and search led to

his imprisonment on a parole violation or some other outstanding
charge, then such a claim must be raised as a defense at the parole
violator hearing or trial upon those charges underlying the warrant
and for which he was arrested.

Plaintiff does not provide the

following crucial information: he does not reveal the charges upon
which

he

is

being

currently

detained

or

the

status

of

state

proceedings on those charges, whether that be parole violation
proceedings or criminal proceedings on new charges.

He is required

to provide this information to the court.
Plaintiff is also advised that if state parole revocation
proceedings or state criminal proceedings are currently pending, any
claims he has challenging those proceedings must be presented in the
first instance to the state court in which those proceedings are
7

currently pending. If he is not satisfied with the outcome of those
proceedings, he must then present his claims on appeal to the Kansas
Court of Appeals and the Kansas Supreme Court before he may seek
review in federal court.

See 28 U.S.C. § 2254(d).

This court has

no authority to intervene in pending state court proceedings.
Furthermore, plaintiff’s claim for money damages based upon
allegations that would necessarily imply the invalidity of a state
criminal conviction or sentence; are premature and must be dismissed
unless plaintiff can demonstrate that the conviction or sentence has
Heck v. Humphrey, 512 U.S. 477, 487

already been invalidated.”

(1994); see also Beck v. Muskogee Police Dep’t, 195 F.3d 553, 557
(10th Cir. 1999).

Plaintiff alleges no facts indicating that any

criminal judgment, that was entered against him as a result of his
arrest, vehicle search, and detention by Officer Groh, has been
overturned.
Plaintiff will be given time to show cause why this action
should not be dismissed for failure to state a claim of federal
constitutional violation.

If he fails to adequately respond within

the time provided this action may be dismissed without further
notice.
Due to the court’s finding upon screening that this case is
subject to dismissal, plaintiff’s motion for appointment of counsel
is denied, without prejudice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
twenty (20) days in which to submit a certified copy of his
institutional account for the six months immediately preceding the
filing of this complaint as required by statute to support his

8

motion to proceed without prepayment of fees.
IT IS FURTHER ORDERED that within the same twenty-day period,
plaintiff is required to advise the court of the status of any state
parole revocation or criminal proceedings pending against him and to
show cause why this action should not be dismissed for the reasons
stated herein.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint
Counsel (Doc. 3) is denied, without prejudice.
IT IS SO ORDERED.
Dated this 15th day of April, 2011, at Topeka, Kansas.

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

9