Greene v. Kansas, State of

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee prerequisite by either paying the filing fee of $350.00 in full or submitting a complete motion to proceed without prepayment of fees on court -provided forms together with the stautority-mandated certified copy of his inmate account transactions for the preceding six-month period. Within the same thirty-day period, plaintiff is required to state additional facts sufficient to show that he is entitled to have this court issue an order requiring that he be provided with DNA evidence for testing. The habeas claims raised in the complaint are dismissed, without prejudice, as improperly brought in a 1983 complaint and for failure to exhaust. Signed by Senior District Judge Sam A. Crow on 1/27/2012. (Mailed to pro se party Andrew Greene by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANDREW GREENE, a/k/a,
ANDREW GREEN,
Plaintiff,
v.

CASE NO.

12-3003-SAC

STATE OF KANSAS,
Defendant.
MEMORANDUM AND ORDER
This action was filed pro se by an inmate of the Ellsworth
Correctional Facility, Ellsworth, Kansas, upon forms for filing a
civil rights complaint pursuant to 42 U.S.C. § 1983.

Mr. Greene

mailed this complaint together with two habeas corpus petitions,
each upon separate, different types of forms.

Having examined all

materials in and attached to the § 1983 complaint, the court finds
that it should be dismissed for reasons that follow.

FILING FEE
The statutory fee for filing this civil action is $350.00.
Mr. Greene1 has not paid the fee and has filed an Application to
Proceed Without Prepayment of fees (WPF) that is incomplete.

A

prisoner seeking to bring an action WPF must submit an affidavit,

1

The court notes that Mr. Greene’s last name on his KDOC records is
spelled Green rather than Greene. The clerk is directed to note on the docket
these two names being used by Mr. Greene for financial and other recording
purposes.

including a statement of all assets, which states that the prisoner
is unable to pay the fee.

28 U.S.C. § 1915(a)(1).

In addition, as

Mr. Greene was informed in a prior case, the prisoner litigant must
also obtain from the appropriate official and submit to the court
a certified copy of his inmate trust fund account statement for the
six-month period immediately preceding the filing of his complaint.
28 U.S.C. § 1915(a)(2).

He has again failed to provide any of the

financial information that is required to support this motion.
This action may not proceed until plaintiff has satisfied the
filing fee either by paying the fee in full or by submitting a
proper and complete Motion to Proceed Without Prepayment of Fees
upon forms provided by the court together with the requisite
financial information.

If he fails to comply within the time

allotted, this action may be dismissed without further notice.
Mr. Greene is forewarned that under § 1915(b)(1), being
granted leave to proceed without prepayment of fees does not
relieve him of the obligation to pay the full amount of the filing
fee.

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

through payments automatically deducted from his inmate account as
authorized by § 1915(b)(2).2

BACKGROUND
In June 2011, Mr. Greene filed a petition for writ of
2

Once plaintiff has paid the part-fee, his motion will be granted and
pursuant to § 1915(b)(2), the Finance Office of the facility where he is
currently confined will be authorized to collect twenty percent (20%) of the
prior month’s income each time the amount in his account exceeds ten dollars
($10.00) until the filing fee has been paid in full.

2

habeas corpus pursuant to 28 U.S.C. § 2254 in this court seeking to
challenge the state conviction that also is the impetus for this
civil complaint.

That action was dismissed without prejudice on

July 7, 2011, due to petitioner’s failure to satisfy the filing fee
prerequisites and to respond to the court’s order to show cause why
the action should not be dismissed for failure to exhaust state
remedies.

In his prior petition, Mr. Greene alleged that he was

convicted by a jury in the District Court of Johnson County,
Kansas, of rape and was sentenced on April 15, 2011, to life in
prison.

The court takes judicial notice of the on-line Kansas

Appellate Court docket for State v. Greene, App. Case No. 106640.
The docket indicates that since the dismissal of his prior federal
action, Mr. Greene filed a Motion to Docket Appeal out of time in
the Kansas Court of Appeals (KCA), and that an Order Appointing
Counsel was entered.
ordered

and

It also indicates that transcripts have been

completed,

and

that

his

direct

appeal

has

been

“retained.” Mr. Greene also sought and was granted an extension of
time to file his Brief to February 2, 2012.
Having considered all three of Mr. Greene’s new actions, it
appears

that

he

is

making

additional

premature

attempts

to

challenge his state conviction in federal court.

ALLEGATIONS AND CLAIMS
In the instant complaint, Mr. Greene alleges that he was
convicted of rape, and that DNA evidence “coupled with other
evidence” could show that he is innocent. He seeks the opportunity
3

to persuade a federal court that the State’s refusal to give him
access to DNA testing has violated his due process rights.

SCREENING
Because Mr. Greene is a prisoner attempting to sue the
State or state officials, 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 reasons that follow.

STATE IS IMMUNE TO SUIT
The only defendant named in the caption of plaintiff’s
complaint is the “State of Kansas.”
defendant

is “employed

as

District

He then writes that the
Attorney

Office.”

It

is

elementary that the person from whom the plaintiff seeks relief in
a civil complaint be properly named as the defendant in the caption
and that sufficient information be provided about each defendant to
permit service of process.

Rule 10 of the Federal Rules of Civil

Procedure requires that all parties be named in the caption.
The court finds that this action is subject to being
dismissed because the only named defendant State of Kansas, as well
as its agencies, are absolutely immune to suit in federal court.
Pennhurts v. Halderman, 465 U.S. 89, 98-100 (1984).
4

FAILURE TO STATE A CLAIM
This action is subject to being dismissed because Mr.
Greene fails to allege facts in the complaint sufficient to show
that he is entitled to relief under § 1983.

Plaintiff’s factual

allegations are few as well as contradictory.

He alleges that DNA

evidence exists that has “remained untested,” while elsewhere in
his complaint he claims that the trial court should have suppressed
the State’s DNA evidence.

Instead of alleging facts, Mr. Greene

quotes pages of text from what appear to be opinions of the U.S.
Supreme Court and Circuit Courts as well as a petition for writ of
certiorari, without citing any sources for the quoted material.
Only occasionally, he inserts his name in the place of the actual
party’s name from the case.

A pro se litigant has the burden of

presenting the facts of his case that show that he is entitled to
the relief he requests.
brief.

He is not expected to submit a legal

Mr. Greene spends so much time and space quoting legal

principles and reasoning, while nowhere explaining the facts of his
case or how any of the quoted legal material applies to those
facts.
The legal material quoted by plaintiff in his complaint
includes discussions regarding Supreme Court opinions in Skinner v.
Switzer, 562 U.S. ___, 131 S.Ct. 1289 (Mar. 7, 2011); and District
Attorney’s Office for the Third Judicial District v. Osborne, 557
U.S. 52, 129 S.Ct. 2308 (2009).

In Skinner, the Supreme Court

decided that a postconviction claim for DNA testing can properly be
pursued in a § 1983 action.

Skinner, 131 S.Ct. at 1293.
5

However,

the Court in Skinner also noted that its earlier decision in
Osborne “severely limits the federal action a state prisoner may
bring for DNA testing.”

Id.

In order to bring such an action

under § 1983 in federal court, the prisoner must “show that the
governing state law denies him procedural due process.”
The

prisoner

in

Skinner

had

directly

Id.

appealed

his

conviction, and unsuccessfully sought state postconviction relief.
He specifically sought postconviction DNA testing of vaginal swabs,
nail clippings, blood and hairs that were recovered at the crime
scene but remained untested.

The State in which Skinner was

convicted, Texas, had enacted a statute that allowed prisoners to
obtain DNA testing “in limited circumstances.”

Id. at 1295.

Skinner had also twice moved in state court under the Texas statute
for DNA testing of the yet-untested biological evidence, and
unsuccessfully appealed the denials of those motions.
Mr. Greene thus far has only been tried and convicted in
state district court.

Since he has yet to exhaust even his direct

criminal appeals, he appears to be more like the petitioner in
Osborne, who “attempt[ed] to sidestep state process through a new
federal lawsuit.”

Osborne, 129 S.Ct. at 2321.

Like in Osborne,

Mr. Greene has not shown that available discovery procedures in
either his state trial or other state proceedings or in a properly
brought federal habeas corpus proceeding are facially inadequate,
or that his request would be arbitrarily denied.
Mr. Greene in this case has not provided any facts to show
that he is entitled under 42 U.S.C. § 1983 to have this court order
6

that the state official having custody of DNA evidence must provide
him with that evidence for testing.

He alleges none of the

following crucial facts: (1) that the DNA evidence he seeks to test
has already been recovered and what it consists of; (2) who
obtained and who currently has custody of this evidence; (3)
whether or not the evidence he seeks to test was admitted at trial;
(4) whether or not he sought discovery of this evidence for defense
testing prior to or during his trial, if not why not and if so by
what means and with what result; (5) that any new DNA testing
procedure has developed since his trial; or (6) that he has raised
the claim on direct appeal that any discovery motion seeking DNA
evidence for defense testing was improperly denied by the trial
court.
Given that Mr. Greene utterly fails to allege facts showing
that he availed himself of any state procedure for obtaining DNA
evidence for testing, he also clearly fails to describe how any
such state procedure was so inadequate that he was denied federal
due process.

As the Supreme Court pointed out in Osborne, “[i]t is

difficult to criticize the State’s procedures when Osborne has not
invoked them.”

Id. at 2321.

It is Mr. Greene’s burden to

demonstrate the inadequacy of the state-law procedures available to
him.

Id.

Given that he has not completed the available state

procedures and fails to adequately describe any constitutional
inadequacy in those procedures, he “can hardly complain that they
do not work.”

Id.

In short, the complaint presents no facts

whatsoever from which this court might determine that discovery
7

procedures in Kansas are inadequate, and is subject to being
dismissed on that basis.
Mr. Greene is given the opportunity to allege additional
facts that are sufficient to show he is entitled to have this court
issue an order requiring that he be provided with DNA evidence for
testing.

If he fails to alleges such facts within the time

allotted, this action may be dismissed without further notice.

In

addition, this action will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim upon which relief may be
granted.

This means that Mr. Greene will be assessed a strike.3

ALL OTHER CLAIMS ARE HABEAS IN NATURE
The court further finds that the only factual allegations
made in the complaint amount to nothing more than a thinly-veiled
attempt

to

conviction.

again

prematurely

challenge

his

state

criminal

His allegations regarding ineffective assistance of

counsel, trial court’s improper admission of DNA test results, lack

3

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.

Once a prisoner has been assessed three strikes he is 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).

8

of witness credibility, insufficiency of the evidence, and even
that he is actually innocent4 are claims that may only be raised in
a petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254.

He is not entitled to have these habeas corpus claims

adjudicated in a § 1983 action, simply because he includes the
conclusory statement in the complaint that he is seeking DNA
evidence for testing.

Moreover, as he was informed in his prior §

2254 action, he may not have these claims reviewed in federal court
until he has fully and properly exhausted all available state court
remedies.

It is clear that he has not exhausted his state remedies

since his direct appeal is currently pending (Kan.App. Case No.
106640).

Accordingly, the court finds that the habeas claims

raised in this complaint must be dismissed, without prejudice.
As the court tried to impress upon Mr. Greene in his prior,
premature federal habeas action, his efforts should be concentrated
on consulting with his appointed appellate counsel and properly
pursuing all his claims on his direct appeal.

His misguided

efforts in this court confirm that he should seek and heed the
advice of his counsel on how to properly proceed.

If he fails to

raise any of his claims on direct appeal, those claims could be
considered waived for purposes of federal habeas corpus.
IT IS THEREFORE BY THE COURT ORDERED plaintiff is granted

4
See Osborne, 129 S.Ct. 2322 (“[A] federal actual innocence claim (as
opposed to a DNA access claim) would be brought in habeas.”). The court also
notes that although Mr. Greene states he has met his burden of proving his
innocence and has presented evidence that precludes any possibility of his guilt,
he has neither described nor presented any such evidence. The habeas claims that
he improperly attempts to raise in this § 1983 complaint are not proof of his
innocence.

9

thirty (30) days in which to satisfy the filing fee prerequisite by
either paying the filing fee of $350.00 in full or submitting a
complete motion to proceed without prepayment of fees on courtprovided forms together with the statutorily-mandated certified
copy of his inmate account transactions for the preceding six-month
period.
IT IS FURTHER ORDERED that within the same thirty-day
period, plaintiff is required to state additional facts sufficient
to show that he is entitled to have this court issue an order
requiring that he be provided with DNA evidence for testing.
IT IS FURTHER ORDERED that the habeas claims raised in the
complaint are dismissed, without prejudice, as improperly brought
in a § 1983 complaint and for failure to exhaust.
The clerk is directed to send plaintiff IFP forms.

The

clerk is also directed to note on the docket the two names being
used

by

Mr.

Greene

for

court

financial

and

other

recording

purposes.
IT IS SO ORDERED.
Dated this 27th day of January, 2012, at Topeka, Kansas.

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

10