Loggins v. Sedgwick County Sheriff's Department et al

Filing 4

ORDER ENTERED: Plaintiff is granted twenty (20) days in which to submit to the court an initial partial filing fee of $27.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as requir ed herein may result in dismissal of this action without prejudice. Within the same twenty-day period, plaintiff must show cause why this action should not be dismissed for failure to state a claim for relief in federal court and counted as a strike . Plaintiff's motion 3 to amend is denied and the contents of this pleading was instead considered by the court as a supplement. Signed by Senior District Judge Sam A. Crow on 6/14/2011. (Mailed to pro se party Kevin D. Loggins by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN D. LOGGINS, Sr.,
Plaintiff,
v.

CASE NO.

11-3079-SAC

SEDGWICK COUNTY
SHERIFF DEPT., et al.,
Defendants.
O R D E R
This “Motion Seeking . . . Court Order regarding Movants
Subpoena” was filed pro se by an inmate of Hutchinson Correctional
Facility, Hutchinson, Kansas.
forma pauperis.

Plaintiff seeks leave to proceed in

He has also filed a “Motion to Amend.”

Having

considered the materials filed, the court finds as follows.
Plaintiff’s allegations indicate the following.

He currently

has an “appeal” pending before the Kansas Court of Appeals: State of
Kansas v. Loggins, Appellate Case No. 103345 (SG Co. Dist.Ct. Case
No. 95-CR-1859).

Records he describes as the “Information of

Inmates Movement Card and Transport docket for the month of November
1995” for inmate Kevin Loggins are “exculpatory evidence” in his
pending appeal.

In January 2011, he wrote to the Sedgwick County

Sheriff’s Department and requested these records.

He exhibits the

response, which advised that he or his attorney could inspect his
records, or that office could “release (to) your attorney copies of
records showing your requested documents upon receiving a court
order.”

He was also advised of the retrieval and copy fees.

In his

Motion to Amend, plaintiff seeks to “add Karen L. Powell (Assistant
County Counselor) to the action.”

To this motion, he attaches a

letter from Powell dated April 22, 2011, that is in response to

“receipt” of plaintiff’s filing in this case.

Therein, Powell

informed plaintiff that “inmate case files prior to the year 2000”
were approved for destruction and destroyed in March, 2011, and that
six

pages

of

“criminal

history

record

information”

could

be

inspected under state law or obtained by “a validly executed
subpoena or a court order.”

Plaintiff vaguely alleges that “movant

challenges the Sedgwick County Courts Jurisdiction in the case” and
the “record sought is the only way to prove whether jurisdiction
existed or not.”
Plaintiff asks this court to “issue the subpoena ordering the
court to release the requested documents” and order respondents to
produce said records or the court order which authorized their
destruction,

or

to

“deem

said

evidence”

in

favor

of

movant.

Plaintiff attaches a Subpoena pursuant to Fed.R.Civ.P. Rule 45.

FILING FEE
The fee for filing a civil action in federal court is $350.00.
Mr. Loggins moves for leave to proceed without prepayment of fees,
and

has

attached

an

statutorily mandated.

Inmate

Account

Statement

in

support

as

Under 28 U.S.C. § 1915(b)(1), a plaintiff

granted such leave is not relieved of the obligation to pay the full
$350 fee. Instead, being granted leave 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 trust fund account as authorized by 28 U.S.C. § 1915(b)(2).
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
2

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 was $136.99,
and the average monthly balance was $47.08.

The court therefore

assesses an initial partial filing fee of $27.00, 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.

SCREENING
Because Mr. Loggins 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 for failure to state a claim.
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
3

behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.

1997).
Plaintiff’s Motion together with his Motion to Amend utterly
fail to state a claim for relief in federal court.1

Mr. Loggins

does not explain why he is motioning this federal court for issuance
of a subpoena or to order production of records that he wishes to
have produced in a pending proceeding in the Kansas Court of Appeals
(KCA).

His citation to Rule 45, Fed.R.Civ.P., provides no such

authority. Instead, Rule 45(2), which governs subpoena practice for
trial or hearing in the federal courts, provides that a “subpoena
must issue” from the court where the hearing or trial is to be held
or where the production is to be made.

Plaintiff’s state criminal

appeal is pending in the KCA, not this federal district court, and
the hearing or trial for which he seeks these records is in the KCA,
not this court.

Plaintiff does not show that he has any trial or

hearing scheduled in federal court.

The docket in his case pending

in the KCA indicates that he is represented by counsel in that case.
As he was advised in one of the letters he exhibits, he should
consult

with

his

counsel

as

to

how

to

obtain

documents

for

production in his state case.
The court finds that this action is frivolous and should be

1
This motion is not a proper Motion to Amend Complaint that conforms
to Fed.R.Civ.P. Rule 15. In order to add a party or claim to a complaint, the
plaintiff must file an Amended Complaint. See Fed.R.Civ.P. Rule 15. An Amended
Complaint completely supercedes the original complaint, and therefore must contain
all claims the plaintiff intends to pursue in the action including those raised
in the original complaint. Any claims not included in the Amended Complaint shall
not be considered.
Plaintiff may not add claims or parties to his original
complaint by simply filing a motion or other paper in which he makes additional
allegations or simply states that he adds a claim or party. The court treats this
filing as a Supplement, rather than an Amended Complaint, and has considered the
contents and the attached letter. If plaintiff wishes to actually add parties or
claims he must file a proper “Motion to Amend” with a complete “Amended Complaint”
on court-approved forms attached to the motion.

4

dismissed under 28 U.S.C. § 1915(a).

The court further finds that

it should count as strike under 28 U.S.C. § 1915(g).

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.

If plaintiff accumulates two more strikes, he will be required

to “pay up front for the privilege of filing . . . any additional
civil actions,” unless he can show “imminent danger of serious
physical injury.”

28 U.S.C. § 1915(g);

Jennings v. Natrona County

Detention Center, 175 F.3d 775, 778 (10th Cir. 1999); see also
Ibrahim

v.

District

of

Columbia,

463

F.3d

3,

6

(D.C.

Cir.

2006)(“Congress enacted the PLRA primarily to curtail claims brought
by prisoners under 42 U.S.C. 1983 and the Federal Tort Claims Act,
most of which concern prison conditions and many of which are
routinely dismissed as legally frivolous.”).
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
twenty (20) days in which to submit to the court an initial partial
filing fee of $ 27.00.

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 twenty-day period,
plaintiff must show cause why this action should not be dismissed
for failure to state a claim for relief in federal court and counted
as a strike.
5

IT IS FURTHER ORDERED that plaintiff’s “Motion to Amend” (Doc.
3)

is

denied,

and

the

contents

of

this

pleading

was

considered by the court as a Supplement.
IT IS SO ORDERED.
Dated this 14th day of June, 2011, at Topeka, Kansas.

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

6

instead