Mondonedo v. Henderson et al

Filing 11

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 3 , 4 & 5 to proceed without prepayment of fees are granted. This action is dismissed for failure to allege facts to establish federal court jurisdiciton, for failure to state a claim on which relief may be granted, and as frivolous. Signed by Senior District Judge Sam A. Crow on 10/22/14. Mailed to pro se party Ralf M. Mondonedo by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RALF MONDONEDO,
Plaintiff,
v.

CASE NO.

12-3082-SAC

KEITH C. HENDERSON,
et al.,
Defendants.
MEMORANDUM AND ORDER
In this action filed by a state prisoner as a civil rights
complaint under 42 U.S.C. § 1983, Mr. Mondonedo attempts to sue
his ex-wife Tiffany Noe for damages based on her alleged forgery
of signatures on additional student loan applications submitted
in his name.1
allegations

He also seeks to sue Keith C. Henderson based on

that

Henderson

conspired

with

defendant

deprive plaintiff of his constitutional rights.

Noe

to

In the Amended

Complaint, Henderson was alleged to be an Assistant District
Attorney in Shawnee County, Kansas, and the prosecutor in the
state criminal case against Mr. Mondenedo.

BACKGROUND

1

Plaintiff alleged that during questioning by his defense counsel at his
criminal trial, Noe admitted signing another’s name on the loan document but
testified that she was directed by Mr. Deatherage, plaintiff’s brother-inlaw, to co-sign on his behalf.
Deatherage and plaintiff testified that no
such authorization was given.
Plaintiff sued Fannie Mae before he was
imprisoned, but provides no information from any civil action that might have
determined either his indebtedness or Noe’s alleged forgery.
1

With

respect

to

defendant

Noe,

plaintiff’s

allegations may be summarized as follows.

background

On January 5, 2009,

he discovered his then-wife’s forgeries and telephoned her that
he was coming home to discuss it.

Upon his arrival, a Topeka

police officer was waiting and took him in for questioning upon
Noe’s

report

of

his

sexual

misconduct

with

her

Plaintiff has remained incarcerated since that time.
that

he

is

currently

indebted

to

Sallie

proceeds “stolen” by defendant Noe.
Noe

“absconded”

November

2009,

“stemming

from

stepdaughter”

to

Texas,

Mr.

where

Mondonedo

the

sexual

including

Rape,

He alleges

for

the

loan

In April 2009, defendant

she

was

Mae

daughter.

currently

convicted

molestation
Attempted

of

of

resides.
12

offenses

his

underage
Incest,

6

counts of Aggravated Indecent Liberties with a child, and

2

counts of Criminal Sodomy with a child.

Aggravated

In

See State v. Mondonedo,

2700 P.3d 1231, *1 (Kan.App. 2012), review denied (Kan. Apr. 8,
2013).

He is currently serving sentences for these convictions.

Defendant

Noe

and

her

daughter

testified

for

the

State

at

plaintiff’s criminal trial.
Plaintiff

seeks

a

declaration

that

his

rights

were

violated; “actual damages” in the form of “restitution” for the
money “stolen” by defendant Noe; and nominal, compensatory, and
punitive damages for the denial of his rights, privileges, and
legal remedies as well as mental and emotional injuries.
2

The

court

previously

screened

the

Amended

Complaint

and

entered a Memorandum and Order (hereinafter SCRNORD) requiring
plaintiff to show cause why this action should not be dismissed.
Plaintiff filed a Response (Doc. 10)(hereinafter RESP).

Having

considered the RESP together with all the materials in the file,
the court dismisses this action for the reasons stated in the
SCRNORD and herein, including lack of jurisdiction and failure
to

allege

facts

to

support

a

federal

constitutional

claim

against either defendant.

DISCUSSION
In

his

Amended

Complaint,

Mr.

Mondonedo

asserted

jurisdiction under 28 U.S.C. §§ 1331 and 1332 based on alleged
violations of federal and state criminal statutes and federal
constitutional rights.

In the SCRNORD, the court found that

plaintiff (1) failed to establish federal question jurisdiction
under § 1331, (2) failed to establish diversity jurisdiction
under

§

1332,

(3)

failed

to

allege

facts

establishing

that

defendant Noe acted “under color of state law,” and (4) that the
damages

claims

prosecutorial

against

immunity.

defendant
Rather

Henderson

than

were

specifically

barred

by

addressing

each of these deficiencies, plaintiff repeats all the counts
from

his

complaint

in

his

Response

together

allegations, arguments, and statements made therein.
3

with

the

When the

repetitive allegations and arguments, bald statements, and legal
conclusions

are

disregarded

in

plaintiff’s

additional allegations and arguments remain.

Response,

few

It is apparent

that Mr. Mondonedo disagrees with the court’s findings in the
SCRNORD,

because

he

declares

that

he

adequately

alleged

violations of his federal constitutional rights and his rights
“created by federal statutes” by defendants and that defendants
acted under color of state law.

Each deficiency in the Amended

Complaint is discussed below along with any counter argument or
new facts discernible from plaintiff’s Response.
A.

Jurisdiction
Plaintiff was advised that the jurisdiction of a United

States District Court is limited, and he bears the burden of
demonstrating

that

jurisdiction

exists.

28

U.S.C.

§

1331

provides for “federal-question” jurisdiction, while 28 U.S.C. §
1332 provides for “diversity of citizenship” jurisdiction.
1.

Federal Question Jurisdiction is not Established

In the Amended Complaint, plaintiff attempted to establish
federal-question

jurisdiction

by

citing

numerous

federal

and

state criminal statutes and claiming that defendants violated
these laws.

The court rejected this as a basis for federal-

question jurisdiction because none of the cited statutes created
a private cause of action.
“complaint

must

identify

Plaintiff was informed that the
the

statutory
4

or

constitutional

provision under which the claim arises, and allege sufficient
facts to show that the case is one arising under federal law.”
Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280
(10TH Cir. 1986).
In his Response, plaintiff repeats that he stated a claim
under § 1331 because his claims arise under federal laws.

He

then cites the same 7 federal criminal statutes from his Amended
Complaint,

and

again

claims

that

defendants

constitutional rights under these federal laws.
the

same

8

state

criminal

statutes

and

defendants violated these state laws.

violated

his

He also cites

claims

again

that

Mr. Mondonedo basically

ignores the court’s discussion and holding in the SCRNORD that
the

cited

criminal

provisions

federal-question jurisdiction.

do

not

provide

a

basis

for

The only addition in plaintiff’s

Response is the following statement:
All (federal) penal statutes presented by plaintiff in
this case . . . are no part of this action as a civil
action but rather presented as plaintiff’s duty to set
the record in favor . . . of the United States
Prosecutors duties against the crimes committed by
defendants. . . .
RESP (Doc. 10) at 3.

This statement would seem to indicate that

plaintiff no longer relies upon the federal criminal statutes to
support

his

However,

he

assertion
continues

to

of

federal-question

argue

that

defendants

jurisdiction.
violated

his

federal constitutional rights by violating these criminal laws.
5

Plaintiff’s
deliberate

repeated

allegations

indifference,

that

reckless

defendants

disregard,

acted

and

with

malicious

intent toward him in violating these criminal statutes are again
rejected as conclusory and formulaic.

Such allegations do not

“engraft” a private remedy onto a criminal statute.

In any

event, Mr. Mondonedo simply cannot recover civil damages for an
alleged violation of a strictly criminal statute.
concludes

that

plaintiff’s

criminal

statutes

and

criminal

statutes

provide

citations

allegations
no

to

that

support

The court

federal

and

defendants

for

his

state

violated

assertion

of

federal-question jurisdiction.
Plaintiff

suggests

that

jurisdiction under § 1983.
confer

any

rights;

it

is

this

court

has

subject

matter

However, § 1983 does not itself
merely

a

vehicle

through

which

a

plaintiff may sue to recover for violations of a federal right
that can be found in the Constitution or other federal law.
Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).

Similar to §

1331, the first element that a plaintiff must establish in order
to state a claim under § 1983, is that he was deprived of a
right secured by the Constitution or laws of the United States.
Section 1983 cannot “fill the gap” for what is clearly absent
from the federal criminal statutes cited by plaintiff, i.e., the
existence
statutes.”

of

a
See

private
Blessing

right
v.

of

action

Freestone,
6

to
520

enforce
U.S.

329,

those
340

(1997)(“In

order

to

seek

redress

through

§

1983,

.

.

.

a

plaintiff must assert the violation of a federal right, not
merely a violation of federal law.”).
Plaintiff continues to assert violations of the 5th and 14th
Amendments
liberally

to

the

views

United

these

relief under § 1983.

States

Constitution,

assertions

as

his

and

stated

the

court

grounds

for

In the SCRNORD, the court found that

plaintiff’s “bald assertions of violations of due process and
equal protection” were not supported by sufficient facts.

In

his RESP, plaintiff still fails to provide a distinct factual
basis for either of these constitutional claims.

His denial of

due process claim appears to be based upon his allegations that
defendant Noe committed acts that deprived him of money and he
has been unable to recover damages.2

His equal protection claim

appears to be based upon allegations that defendants took acts
to

avoid

protection

Noe’s
under

criminal
the

prosecution,

criminal

laws,

2

which
and

denied

plaintiff

“prevented

plaintiff

Plaintiff’s allegation that defendant Noe stole money from him, taken
as true, indicates nothing more than a private act and does not suggest that
plaintiff was entitled to due process prior to the criminal deprivation.
Plaintiff’s bald allegation that he was denied due process in that his
“personal remedies” were denied remains unsupported by any facts.
He does
not describe a single proper civil action brought by him against Noe or the
acts of each defendant that actually impeded him from pursuing civil
remedies. Certainly, his allegation that Noe moved to Texas 3 months after
causing his monetary loss does not, without more, establish that defendants
prevented him from seeking personal recovery. Nor does plaintiff explain how
Noe’s avoidance of criminal prosecution implicates any of his due process
rights.
In short, plaintiff utterly fails to allege facts that elevate
defendant Noe’s alleged criminal conduct to a violation of plaintiff’s
federal due process rights.

7

from bringing his claims” against Noe and “obtaining remedies”
for his loss.3
facts

alleged

constitutional
facts.

Thus, faced with court’s SCRNORD finding that the
were
claim,

insufficient
plaintiff

to

simply

state
re-alleges

a

federal
the

same

This court may not supply additional factual allegations

to round out plaintiff’s complaint or construct a legal theory
on his behalf.

The court concludes that plaintiff fails to

state a claim under the 5th and 14th Amendments.

3

Plaintiff now claims that defendant Henderson violated his right to
equal protection by preventing him from obtaining legal help and “protection
from the State against the crimes” committed by Noe. He alleges that he was
“intentionally treated differently from others similarly situated” without
rational basis when Henderson refused to act on Noe’s crimes and “advised her
to leave the State to cover up their misconduct.”
Plaintiff’s implication
that he was prevented from pursuing civil remedies against Noe was already
rejected as conclusory.
The Equal Protection Clause prohibits state and
local governments from treating similarly situated persons differently. City
of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439–41 (1985). To
make such a claim, as a class of one, plaintiff “must prove that he was
singled out for persecution due to some animosity” on the part of defendants
by showing that “the action taken by the state . . , was a spiteful effort to
‘get’ [him] for reasons wholly unrelated to any legitimate state objective.”
Bartell v. Aurora Public Schools, 263 F.3d 1143, 1149 (10th Cir.
2001)(quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995)).
The
court reiterates that Mr. Mondonedo has no right to the criminal prosecution
of another (Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)(“[A] private
citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”). Mr. Mondonedo proffers neither a legal theory
under which the failure to prosecute Noe amounted to persecution of him nor
any explanation as to how not prosecuting Noe injured him personally.
Mr.
Mondonedo does not refer to a particular law and describe how it was applied
to him differently than to other similarly situated persons.
He references
many criminal statutes intended to protect the public at large, but these
laws were presumably published at the time Noe allegedly committed her
crimes, and the fact that the laws and their penalties did not deter her
criminal acts is not attributable to defendant Henderson. In sum, plaintiff
fails to present either a legal or factual basis for his denial of equal
protection claim.

8

The other federal civil statutes relied upon by plaintiff
are 42 U.S.C. §§ 1985 and 1986.4

Section 1985 provides a cause

of action for “conspiracy to interfere with civil rights.”

Id.

In the SCRNORD and herein the court has held that plaintiff’s
allegations of violations of the 5th and 14th Amendments are not
supported by sufficient facts.

The court reasoned that the §

1985 claim failed because plaintiff’s “only references to racial
or class-based animus are completely conclusory.”5

The court

found that the Amended Complaint was “utterly devoid of fact
allegations showing the requisite meeting of the minds and an
agreement

between

constitutional

defendants”

rights.

to

violate

Plaintiff

subsection of § 1985 he asserts.

has

plaintiff’s

never

federal

specified

which

In his RESP, he simply repeats

his allegations that defendants violated § 1985 “by conspiring
to deprive plaintiff” of his constitutional rights under the
Fifth and Fourteenth Amendments “and other Federal and State
laws.”
recitation

This
of

insufficient.

statement
the

cause

is

nothing

of

action

more
in

§

than

a

1985(3),

formulaic
which

is

He also baldly alleges that defendants conspired

4

A § 1986 claim (failure to prevent a conspiracy) is premised upon the
existence of a § 1985 claim (conspiracy to violate rights). It follows that
the § 1986 claim need only be discussed when plaintiff has stated a colorable
§ 1985 claim. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th
Cir. 1990).
5

Section 1985(3) requires a plaintiff to allege some invidious racial or
otherwise class-based discriminatory animus underlying the defendant’s
actions.
9

to obstruct justice, which
1985(2).

is a formulaic recitation from

§

In his RESP, plaintiff again fails to present specific

facts showing any actual agreement and concerted action between
defendants.

His only additional allegations are speculation and

innuendoes, which are not sufficient to state a claim upon which
relief may be granted.

See Griffin v. Breckenridge, 403 U.S.

88, 102 (1971); Steinert v. Winn Group, Inc., 440 F.3d 1214,
1225

and

n.

13

(10th

Cir.

2006).

“Vague

and

conclusory

allegations of a conspiracy are not sufficient when unsupported
by

a

description

of

particular

over

acts.”

Gunnell, 722 F.2d 615, 618 (10th Cir. 1983).6
that

plaintiff

fails

to

allege

sufficient

Benavidez

v.

The court finds
facts

to

state

a

conspiracy claim under either subsection (2) or (3) of § 1985,
and therefore states no cause of action under § 1986.
The court concludes, for reasons stated in the SCRNORD and
herein, that plaintiff fails to allege sufficient facts to state
a claim under 42 U.S.C. §§ 1983, 1985 and 1986.

Because the

Amended Complaint fails to state a federal constitutional claim,
it is dismissed as frivolous and for failure to state a claim
pursuant to Section 1915(e)(2).
2.

Diversity Jurisdiction is not Established

6

Plaintiff’s failure to state facts to support his claims of conspiracy
is discussed in more detail later herein.
10

In the SCRNORD the court found that plaintiff failed to
establish diversity jurisdiction because his allegations in his
Amended Complaint indicated that both he and defendant Henderson
were

citizens

discussing
diversity
pursuing

of

this
is

the

State

issue,

Kansas.

plaintiff

required.7

defendants

of

was

Nevertheless,

jointly

herein.

In

the

informed

that

plaintiff
Mr.

course

complete

persists

Mondonedo

of

was

in

also

informed that he has the duty to plead the citizenship of all
parties.

See

McNutt

v.

General

Motors

Acceptance

Corp.

of

Indiana, 298 U.S. 178, 189 (1936)(The party seeking the exercise
of jurisdiction in his favor “must allege in his pleading the
facts

essential

to

show

jurisdiction.”).

Now

in

his

RESP,

plaintiff makes the following new allegations:
Henderson is no longer an employee of . . . Shawnee
County . . . and is a resident of another State since
he was terminated due to his violations of the laws
the day that he obtained an illegal conviction of
plaintiff.
(plaintiff case is currently under appeal
. . . directly with the Supreme Court).
RESP at 2.

These bald allegations regarding defendant Henderson

are entirely unsubstantiated and do not establish that Henderson
is a citizen of a state other than Kansas.8

Mere conclusory

7

Plaintiff was also informed in the SCRNORD that the amount in
controversy must exceed $75,000. In his RESP, he newly alleges that he was
damaged in an amount exceeding $100,000, rather than the $60,000 alleged in
his Amended Complaint.
8

Plaintiff’s innuendos that defendant Henderson was “terminated for law
violations” in obtaining his “illegal conviction” are inconsistent with the
fact that Mondonedo’s convictions were affirmed by the Kansas Court of
11

allegations of jurisdiction are to be ignored.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971).

See Groundhog v.
Plaintiff alleged

facts that destroyed diversity in his Amended Complaint and in
his

Response

diversity.

makes

only

conclusory

allegations

to

repair

Significantly, he does not even provide Henderson’s

current residential address and exhibits no proof that since the
filing

of

this

action

defendant

citizenship outside this state.

Henderson

established

See Whitelock v. Leatherman,

460 F.2d 507, 514 (10th Cir. 1972).

The court concludes that

plaintiff has failed to allege facts in his pleadings that are
necessary for the court to determine the existence of diversity
jurisdiction.
Cir. 2003).

Martinez v. Martinez, 62 Fed.Appx. 309, 313 (10th
Accordingly, plaintiff’s assertion of jurisdiction

under 28 U.S.C. § 1332 fails for the reasons stated herein and
in the SCRNORD.9
B.

Failure to State a Claim against Defendant Noe

The second element that a plaintiff must establish in order
to state a claim under § 1983 is that the alleged deprivation of
a

federal

right

was

committed

“under

color

of

state

law.”

Plaintiff seeks damages from his ex-wife based on allegations
that she forged signatures on documents causing him to become
liable on school loans issued in an amount over $100,000.

The

Appeals and review was denied by the Kansas Supreme Court.
9

Plaintiff also fails to establish jurisdiction by simply citing the
Kansas long-arm statute.
12

court found in the SCRNORD that plaintiff failed to state a
claim

against

allegations

defendant

were

Noe

insufficient

color of state law.”

mainly

to

show

because
that

Noe

plaintiff’s
acted

“under

The court reasoned that no facts alleged

by plaintiff suggested that Noe was functioning in other than
her

private

capacity

at

the

time

of

the

alleged

crimes.

Plaintiff has not cured this fatal defect in his claims against
defendant Noe.
In an effort to satisfy the state-action element as to
defendant Noe, plaintiff maintains that private actor Noe acted
in conspiracy with state actor defendant Henderson.

Plaintiff

alleged in his Amended Complaint and repeats in his Response
that by moving out of state, defendant Noe escaped prosecution
for her alleged criminal acts.

However, the court found that

plaintiff had not pleaded facts indicating that Noe’s move out
of state violated his federal constitutional rights or was made
possible only because she was “clothed with the authority of
state law;”10 and that plaintiff had no federal constitutional
right to Noe’s prosecution.

Mr. Mondonedo was advised in the

SCRNORD

must

that

a

“complaint

contain

sufficient

factual

matter, accepted as true, to ‘state a claim to relief that is
plausible

on

its

face.’”

Iqbal,

10

556

U.S.

at

679

(citation

“Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
13

omitted).

The Iqbal evaluation requires a two-pronged analysis.

First, the court identifies “the allegations in the complaint
that are not entitled to the assumption of truth,” that is,
those allegations which are legal conclusion, bare assertions,
or merely conclusory.
considers
plausibly

the

factual

suggest

Furthermore,

Id. at 678–681.

an

allegations

entitlement

plaintiff

was

Secondly, the court

“to

to

determine

relief.”

informed

of

the

if

Id.
Tenth

at

they
681.

Circuit’s

instruction that the pleadings standard is “even stricter” where
the

state

immune

official

from

suit.

allegedly
Plaintiff

involved
agrees

in

the

conspiracy

with

the

court

that

is
a

conspiracy between a private party and a state official, if
properly

alleged,

could

satisfy

the

state-action

element.

However, he has paid little heed to the court’s advisements that
conclusory allegations of a conspiracy are not sufficient, and
that

the

pleadings

must

specifically

present

facts

showing

agreement and concerted action.
In

his

Response,

plaintiff

repeats

his

bald

allegations

that defendant Noe “used” defendant Henderson “and the office of
the

District

remedies”

Attorney

and

conspiracies

that

with

to

prevent

plaintiff

state

actor

was

plaintiff
engaged

defendant

in

from
one

Henderson.

obtaining
or

more

He

also

repeats his bare assertions that defendant Noe left the State of
Kansas on the advice of Henderson to avoid criminal prosecution,
14

that Henderson refused to prosecute Noe for her crimes, and that
“Henderson had agreements with” Noe “to brake (sic) laws and to
violate plaintiff’s constitutional rights.”11

Mr. Mondonedo has

not adequately responded to the defects in his conspiracy theory
by

alleging

specific

facts

showing

agreement

action between defendants Noe and Henderson.

and

concerted

Instead, he adds

several conclusory allegations regarding the intentions of, and
purported

agreements

these allegations
personal

is

knowledge

between,

defendants.

shown to be
of

specific

However,

based upon
events,

none

of

Mr. Mondonedo’s

but

purportedly based upon “information and belief.”

rather

are

Nowhere does

plaintiff describe a plausible factual scenario that evinces the
intentions or agreements he ascribes to defendants.

These self-

serving allegations appear to be nothing more than speculation
on plaintiff’s part.

As a result, they are not entitled to a

presumption of truth and do not amount to factual support for
plaintiff’s claims.12

In short, plaintiff’s allegations that Noe

11

The acts of defendant Noe that allegedly violated plaintiff’s federal
constitutional rights may be summarized as: (1) committed criminal acts
including forgery, which caused plaintiff monetary loss and (2) moved out of
state to avoid prosecution and prevent plaintiff’s recovery for that loss.
12

The rejected conclusory allegations include: “upon information and
belief” that “soon after Noe made allegations against plaintiff,” Henderson
advised Noe to leave the State of Kansas to avoid prosecution until she
testified against plaintiff; defendant Henderson acted “as the legal
representative” of defendant Noe and “helped her to abscond; “upon
information and belief,” defendant Henderson intended to cover-up Noe’s
crimes “to keep her . . . clear of all wrongdoings just to qualify her as a
good witness against plaintiff;” Henderson was aware of Noe’s crimes but
“prevented plaintiff from bringing his claims” against her; Henderson advised
15

acted

in

concert

conclusory
actor

and

with

defendant

therefore

status.13

The

Henderson

inadequate

court

finds

to

that

remain

imbue

vague

her

plaintiff

with
has

and

state

utterly

failed to demonstrate “the existence of a significant nexus or
entanglement between” the immune state official Henderson and
the private party Noe “in relation to the steps taken by each to
fulfill

the

objects

of

their

conspiracy.”

Accordingly,

the

court concludes that plaintiff states no claim in federal court
against defendant Noe.14
C.

Failure to State a claim against Defendant Henderson

In

the

Amended

Complaint

and

again

in

his

Response,

plaintiff claims that defendant Henderson knew of Noe’s crimes
but refused to investigate or prosecute her;15 “advised others”
not

to

prosecute

her;

and

violated

plaintiff’s

Fifth

and

“others” not to prosecute Noe; and defendant Noe “used” defendant Henderson
“and the office of the District Attorney to prevent plaintiff from obtaining
remedies.”
13

Thus, accepting as true that defendant Noe engaged in criminal acts
that damaged plaintiff, the complaint against Noe fails to state a claim in
federal court because her acts are not shown to have been taken under color
of state law.
14

The court also found in the SCRNORD that Noe’s act of reporting
suspected criminal activity to police did not constitute state action and
that her testifying at plaintiff’s criminal trial neither constituted state
action nor violated plaintiff’s federal constitutional rights. Plaintiff was
informed that, to the extent he claims that Noe testified falsely at his
trial in exchange for the prosecutor’s agreement not to prosecute her on
unrelated charges, such claim must have been fully litigated in the first
instance as a challenge to his state conviction and is barred as premature
unless and until his convictions have been overturned. Heck v. Humphrey, 512
U.S. 477 (1994).
15

Plaintiff has repeatedly made this claim, but has never alleged facts
indicating that Henderson had the authority to prosecute Noe, particularly
while he was prosecuting her husband with her as a State’s witness.
16

Fourteenth

Amendment

rights

by

denying

him

“protection

from

crimes committed against him,” “preventing” him “from obtaining
remedies,”

and

against Noe.

denying

his

right

to

be

heard

on

his

claims

In support, Mr. Mondonedo alleged that “during his

trial” he asked defendant Henderson to investigate and prosecute
Noe, but Henderson refused; and that the Deatheridges filed a
formal complaint with the Topeka Police Department, but the TPD
refused to investigate due to Henderson’s recommendation.16
In the SCRNORD the court found that plaintiff’s allegations
failed to state a claim against defendant Henderson because they
are conclusory17 and Mr. Mondonedo had no constitutional right to
have Noe criminally prosecuted.
the

doctrine

of

prosecutorial

The court further found that
immunity

barred

damages

claims

against defendant Henderson based on allegations that Henderson
suborned Noe’s trial testimony, helped Noe “cover up” her own
crimes to appear more credible as a witness, and declined to
prosecute Noe.
In

his

Response,

plaintiff

argues

that

immunity

applies

only when the prosecutor is acting as an officer of the court
and depends “upon the function” being undertaken; and “does not

16

Plaintiff’s allegations regarding the TPD appear to be hearsay upon
hearsay.
17

For
example,
plaintiff’s
allegations
that
defendant
Henderson
“neglect(ed) to prevent the conspiracy” and did not act “to prevent the
violations of plaintiff’s Constitutional Rights” are nothing but conclusory
statements.
17

apply” when a prosecutor “knowingly violate(s) the law” or is
engaged in “other tasks.”

While the court does not disagree

with these legal arguments, plaintiff utterly fails to allege
facts

showing

Instead,

that

any

plaintiff

completely

such

exception

follows

conclusory

his

applies

legal

statement

that

in

his

arguments
“all

case.

with

actions

the

alleged

herein” by defendant Henderson were committed “outside the scope
of his role as a prosecutor.”
facts

to

show

that

Plaintiff alleges no additional

defendant

Henderson

acted

outside

his

prosecutorial role.

The court finds that defendant Henderson is

likewise

to

entitled

prosecutorial

immunity

based

upon

plaintiff’s allegation that Henderson “engaged in factual search
of the allegations made by (Noe) against plaintiff” for purposes
of prosecuting plaintiff.
Plaintiff’s claim that his legal remedies against Noe were
denied by defendants’ acts likewise remains nothing more than a
conclusory

statement.

As

noted,

Mr.

Mondonedo

has

never

described his pursuit of an available remedy against Noe and
explained how it was actually impeded by her move to Texas.
D.

No Jurisdiction over State Law Claims

Plaintiff asserts that this court has jurisdiction over his
state-law
Under

§

claims
1367,

a

against
court

defendants
has

under

supplemental

28

U.S.C.

jurisdiction

§

1367.

over

a

plaintiff’s state law claims that arose from the “same nucleus
18

of

operative

facts,”

but

only

if

jurisdiction

invoked under either § 1331 or § 1332.

is

properly

Based on the findings

herein and in the SCRNORD that federal jurisdiction has not been
established, the court declines to consider plaintiff’s state
law

claims.

See

28

U.S.C.

§

1367(c)(3)(providing

that

a

district court may decline to exercise supplemental jurisdiction
over a state law claim if “the district court has dismissed all
claims over which it has original jurisdiction”).

Clements v.

Chapman, 189 Fed.Appx. 688, 691-693 (10th Cir. 2006).
IT

IS

THEREFORE

BY

THE

COURT

ORDERED

that

plaintiff’s

Motions to Proceed without Prepayment of Fees (Docs. 3, 4, & 5)
are granted.

Plaintiff is hereby assessed the remainder of the

$350.00 filing fee18 to be paid through payments automatically
deducted from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).

The Finance Office of the Facility where

plaintiff is currently incarcerated is directed by copy of this
Order to collect from plaintiff’s account and pay to the clerk
of the court twenty percent (20%) of the prior month’s income
each time the amount in plaintiff’s account exceeds ten dollars
($10.00) until plaintiff’s outstanding filing fee obligation has
been paid in full.

Plaintiff is directed to cooperate fully

with his custodian in authorizing disbursements to satisfy the

18

Plaintiff submitted the initial partial filing fee of $10.00 assessed
by the court, and thus the remainder due is $340.00.
19

filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian
to disburse funds from his account.
IT IS FURTHER ORDERED that this action is dismissed for
failure to allege facts to establish federal court jurisdiction,
for failure to state a claim on which relief may be granted, and
as frivolous pursuant to 28 U.S.C. § 1915A(a) and (b); 28 U.S.C.
§ 1915(e)(2)(B).
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

confined,

and

to

the

court’s

finance

office.
IT IS SO ORDERED.
Dated this 22nd day of October, 2014, at Topeka, Kansas.

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

20