Mondonedo v. Henderson et al

Filing 9

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $10.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay th e fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for lack of jurisidiction and for failure to state a federal constitutional claim. Plaintiff's motion 7 for protective order is denied. Signed by Senior District Judge Sam A. Crow on 8/9/2012. (Mailed to pro se party Ralf 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
This
Dorado

civil

complaint

Correctional

screening

of

the

was

filed

Facility,

original

by

El

an

inmate

Dorado,

complaint

was

filed an Amended Complaint (Doc. 8).

of

the

El

Kansas.

Before

completed,

plaintiff

The original complaint is

completely superseded by the Amended Complaint, and the original
complaint shall not be considered further.
Plaintiff attempts to sue his ex-wife for damages based
upon the claim that she forged a prior co-signor’s signature on
additional

law

school

student

loans

for

him

causing

him

to

become indebted for $60,000.

He also sues an Assistant County

Attorney

upon

for

plaintiff’s

damages,
ex-wife

against plaintiff.

based

in

escaping

the

claim

prosecution

that
for

he
her

aided
crimes

Plaintiff is required to show cause why this

action should not be

dismissed

for

lack of jurisdiction and

failure to state a federal constitutional claim.

1

ASSESSMENT OF PARTIAL FILING FEE
The statutory fee for filing a civil complaint is $350.00.
Plaintiff has filed three Motions to Proceed Without Prepayment
of Fees (Docs. 3,4,5), and has attached to one an Inmate Account
Statement in support as statutorily mandated.

He is reminded

that under 28 U.S.C. § 1915(b)(1), a plaintiff granted such
leave is not relieved of the obligation to pay the full fee of
$350.00.

Instead,

he is merely

entitled

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 § 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 account for the six months immediately preceding the
filing

of

a

civil

action.

Having

examined

the

records

of

plaintiff’s account, the court finds that the average monthly
deposit

was

$

52.08,

and

the

average

monthly

balance

was

$

13.15.

The court therefore assesses an initial partial filing

fee of $ 10.00, twenty percent of the average monthly deposit,
rounded

to

the

lower

half

dollar.

Plaintiff

must

pay

this

partial fee before this action may proceed further, and is given
time to submit it to the court.

His failure to comply within

2

the time allotted may result in dismissal of this action without
further notice.

SCREENING
Because Mr. Mondonedo 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); 28

U.S.C. § 1915(e)(2)(B).
A court liberally construes a pro se complaint and applies
“less

stringent

lawyers.”

standards

than

formal

pleadings

drafted

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

by

However,

this case presents the unusual circumstance that Mr. Mondonedo
apparently completed law school and was employed as an attorney
prior to his incarceration.

In any event, a pro se litigant’s

“conclusory allegations 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 behalf.”

Whitney v. State of N.M., 113 F.3d 1170,

1173-74 (10th Cir. 1997).

3

FACTUAL BACKGROUND, ALLEGATIONS, AND CLAIMS
Mr. Mondonedo is serving sentences for convictions of Rape,
Attempted

Aggravated

Incest,

numerous

counts

of

Aggravated

Indecent Liberties with a child, and Criminal Sodomy with a
child.
Noe.

The victim of these crimes is the daughter of defendant
She was also plaintiff’s stepdaughter.

Plaintiff names as

defendants his ex-wife Tiffany Noe who now resides in Texas; and
Keith Henderson, Assistant District Attorney,

Shawnee County,

Kansas.
As

the

factual

alleges as follows.
hearing

in

a

civil

background

for

his

complaint,

plaintiff

On January 5, 2009, he attended a pretrial
case

he

regarding his student loans.

had

filed

against

Sallie

Mae

At this hearing he “discovered

that Tiffany M. Noe had forged the signatures of plaintiff,
plaintiff’s

sister,

and

plaintiff’s

brother-in-law,

with

the

intent to defraud” and thereby obtained loans in the amount of
about $60,000.

Plaintiff telephoned Noe and said he would be

home later to discuss her forgeries.

When plaintiff arrived

home, an officer from the Topeka Police Department (TPD) was
waiting and informed him that “allegations of sexual misconduct
were made” against him by defendant Noe regarding plaintiff’s
16-year-old stepdaughter.

About three months later, defendant

Noe “left the State of Kansas.”

4

Defendant

Noe

testified

at

plaintiff’s

criminal

trial.

During questioning by defense counsel, she “admitted that she
had signed and/or created and mailed documents for the loans she
obtained”

in

the

amount

of

about

$60,000.

However,

she

additionally testified that she was directed by David Deatherage
to co-sign on his behalf.

David Deatherage testified that he

“never gave authorization” to Noe to sign any documents on his
or anyone else’s behalf.

Plaintiff alleges that at no time did

he or either Deatherage give Noe authority to sign or make any
loan document.

Plaintiff is liable to Sallie Mae for the money

“stolen” by Noe.

The Deatherages filed complaints with the TPD

regarding the forgeries by Noe.

Defendant Henderson “agreed and

conspired with” Noe that if she would testify against plaintiff
at his trial for sex offenses, she would not be prosecuted for
her

crimes.

Henderson

with

Noe
the

left

Kansas

intent

testified against plaintiff.

to

on

the

“avoid

advice

of

prosecution”

defendant
until

she

Upon plaintiff’s “information and

belief,” defendant Henderson’s intent was to cover-up and clear
Noe of wrongdoing in order “to qualify her as a good witness
against plaintiff.”

Defendant Henderson acted “as the legal

representative” of defendant Noe and “helped her to abscond.”
Henderson was aware of Noe’s crimes but “prevented plaintiff
from

bringing

defendant

his

Henderson

claims”
to

against

investigate
5

her.
and

Plaintiff
prosecute

Noe,

asked
but

Henderson
refused

refused

to

and

advised

others

“due

the

investigate

(defendant Henderson).”

to

against

it.

recommendation

The

TPD

given

by

Henderson “had ulterior and ill motives

toward plaintiff based on race, and/or gender, and/or political
reasons.”
office

Defendant

of

the

Noe

District

used

defendant

Attorney

to

Henderson

prevent

“and

plaintiff

the
from

obtaining remedies.”
Plaintiff
conspired

to

claims
and

in

did

counts

violate

I

and

his

II

that

constitutional

defendants
rights

by

denying him due process and equal protection of the law.

He

cites 42 U.S.C. §§ 1985, 19861 and 18 U.S.C. §§ 241, 242; as well
as “State laws,” specifying only K.S.A. 21-3302 (now K.S.A. 215302, which defines the crime of conspiracy to commit a crime).
In Count III, plaintiff claims that defendant Henderson did
not act “to prevent the violations of plaintiff’s Constitutional
Rights.”

He cites 42 U.S.C. § 1986, 18 U.S.C. §§ 241, 242 “and

State law.”
In

Counts

IV

through

VIII,

X

through

XII,

and

XIV,

plaintiff claims that defendant Noe committed various crimes:
perjury, subordination (sic) of perjury, mail fraud, bank fraud,
theft,

identity

theft,

fraud,

forgery,

and

aggravated

making

false

1

identity

theft,

information.

identify
As

legal

Plaintiff’s claims under §§ 1985 and 1986 fail because his only
references to racial or class-based discriminatory animus are completely
conclusory.

6

authority

for

these

counts

he

cites

statutes found in Title 18 U.S.C.:

the

following

federal

§§ 1621, 1622, defining the

crimes of perjury and “subornation of perjury;” § 1341 defining
the crimes of frauds and swindles; § 1344 defining the crime of
bank

fraud;

and

identify theft.
that

define

defining

state

false

commission

defining

criminal

K.S.A.

identity

3701(a)(1),(2)
making

1028A

crime

theft

defining

these

offenses:

of

K.S.A.

21-4018(a)(currently
and
theft;

information.

of

the

aggravated

He also cites the following Kansas statutes

perjury,

defining

§

He

crimes

was

identity
and

with

K.S.A.

fraud;

K.S.A.

claims

21-3805(a)(1)

intent

K.S.A.

21-3711

that

21-6107)

defining

defendant
to

21-

Noe’s

violate,

and

resulted in violation of, his constitutional rights.
In

Count

IX,

plaintiff

“obstructed the legal process.”

claims

that

both

defendants

He cites K.S.A. 21-3808, which

defines the state offense of obstructing legal process.
As Count XIII, plaintiff claims that both defendants denied
his civil rights.
K.S.A.
services

For legal authority, he purports to quote

21-4003(a)(1)
of

any

as

state

prohibiting
agency

on

the

account

ancestry, national origin or religion.”
is

currently

K.S.A.

21-6002,

and

denial
of

of

“race,

of

color,

However, K.S.A. 21-4003

defines

the

offense

“official misconduct” by a public officer or employee.

7

use

of

He also

cites K.S.A. 21-3808, which is currently K.S.A. 21-5904(a)(2)
and defines the crime of “interference with law enforcement.”
Plaintiff seeks a declaration that his rights have been
violated and “actual damages” of $60,000 from each defendant “as
restitution”

for

defendant Noe.
privileges,

the

money

allegedly

stolen

from

him

by

He also seeks damages for denial of his rights,

and

legal

remedies,

as

well

is

no

as

for

mental

and

emotional injuries.
Plaintiff

states

that

there

administrative

remedy

available for the claims presented.

FAILURE TO ESTABLISH JURISDICTION
Jurisdiction to proceed in a United States District Court
is limited, and the plaintiff bears the burden of demonstrating
that subject matter jurisdiction exists.

Because subject matter

jurisdiction involves a court’s power to hear a case, courts are
obliged to determine whether it exists, even in the absence of a
challenge.

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); see

Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044,
1048

(10th

obligation

Cir.
to

2006)(a

determine

federal
whether

court
subject

has

an

matter

independent
jurisdiction

exists and may raise the issue at any stage in the litigation);
Penteco Corp. v. Union Gas System, 929 F.2d 1519, 1521 (10th
Cir. 1991).
8

The

“basic

statutory

grants”

of

federal-court

subject-

matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332.
Section
Section

1331
1332

jurisdiction.

provides

for

“federal-question”

provides

for

“diversity

Plaintiff

fails

to

of

establish

jurisdiction.
citizenship”
subject

matter

jurisdiction under either provision.

1. Federal Question Jurisdiction Not Established
Federal district courts “have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties
of the United States.”

28 U.S.C. § 1331.

jurisdiction must appear on the face of a
pleaded complaint.”

“[F]ederal question
plaintiff’s well-

Martinez v. United States Olympic Comm.,

802 F.2d 1275, 1280 (10th Cir. 1986)(citations omitted); Rice v.
Office of Servicemembers' Group Life Ins., 260 F.3d 1240, 1245
(10th Cir. 2001)(citing Merrell Dow Pharms. v. Thompson, 478
U.S. 804, 808, 811-12 (1986)).

The phrase “arising under” means

generally that “[a] suit arises under the law that creates the
cause of action.”

American Well Works Co. v. Layne & Bowler

Co., 241 U.S. 257, 260 (1916)).

“The complaint must identify

the statutory or constitutional provision under which the claim
arises, and allege sufficient facts to show that the case is one
arising under federal law.”

Martinez, 802 F.2d at 1280; see

also Cornelisen v. Gunnarson, 24 F.Supp.2d 1246, 1247 (D. Utah
9

1998)(citing id.), aff’d, 162 F.3d 1172 (10th Cir. 1998)(Table);
Franchise Tax Bd. v. Construction Laborers Vacation Trust For S.
Cal., 463 U.S. 1, 8 (1983).
the

Constitution

or

laws

“[A] right or immunity created by

of

the

United

States”

is

thus

essential” element “of the plaintiff’s cause of action.”

“an

Id. at

10-11 (quoting Gully v. First Nat’l Bank in Meridian, 299 U.S.
109, 112 (1936)).
Plaintiff

disregards

that

both

§

1331

and

§

1332

“restricted to conveying jurisdiction over civil actions.”
Nation

v.

Springer,

341

F.3d

1186,

1188

Without citing authority for doing so,
federal

civil

statutes.
statutes

claims

pursuant

to

(10th

he

federal

Cir.

are
Kaw

2003).

attempts to bring
and

state

criminal

His citations to and alleged violations of criminal
do

not

establish

this

court’s

jurisdiction.

See

Oppenheim v. Sterling, 368 F.2d 516, 519 (10th Cir. 1966), cert.
denied, 386 U.S. 1011 (1967)(“There is no legislative history
nor is there any case which has been cited to us or which we can
find

which

affords

the

supports

the

view

court

federal

that

question

a

violation

of

jurisdiction

in

[§

1341]

a

civil

case.”); Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178-79 (6th
Cir. 1979)(holding that no private action can arise from the
criminal

statute).

Generally,

criminal

statutes,

federal, do not create a private cause of action.
Springer,

341

F.3d

at

1186.

Instead,
10

they

are

state

or

See e.g.,
enacted

to

protect the public at large and provide a penal remedy for their
violation.
No penal statute cited by plaintiff, on its face, confers a
private right of action.

See California v. Sierra Club, 451

U.S. 287, 293 (1981)(stating that the “ultimate issue is whether
Congress intended to create a private right of action”); OMI
Holdings, Inc. v. Howell, 864 F.Supp. 1046 (D.Kan. 1994), aff’d,
107 F.3d 21 (10th Cir. 1997); Boisjoly v. Morton Thiokol, Inc.,
706 F.Supp. 795 (D.Utah 1988); Creech v. Federal Land Bank of
Wichita, 647 F.Supp. 1097 (D.Colo. 1986); Barr v. Camelot Forest
Conservation

Ass’n,

2005)(affirming
under

18

offenses

U.S.C.
for

Inc.,

district
§§

which

153

Fed.Appx.

court’s

241

and

there

is

(3rd

862

Cir.

dismissal

of

claims

brought

because

they

“are

criminal

242
no

860,

civil

remedy”)(unpublished),2

cert. denied, 547 U.S. 1193 (2006); Bell v. Health-Mor, Inc.,
549 F.2d 342, 346 (5th Cir. 1977)(noting that no private right
of

action

exists

under

the

federal

mail-fraud

statutes);

DIRECTV, Inc. v. Cavanaugh, 321 F.Supp.2d 825, 834 (E.D.Mich.
2003)(noting that 18 U.S.C. § 876 “does not authorize a civil
remedy”).
were

Nor do plaintiff’s conclusory statements that crimes

committed

with

“deliberate

indifference”

and

his

constitutional rights were violated “engraft” a private remedy
2

Unpublished opinions are not cited herein as binding precedent,
but for persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

11

onto

the

cited

criminal

statutes.

Furthermore,

statutes cannot be enforced by civil actions.”
Romer,

759

F.Supp.

670,

673

(D.Colo.

“[c]riminal

See Winslow v.

1991)(“private

citizens

generally have no standing to institute criminal proceedings”).
Mr.

Mondonedo

is

a

private

citizen

and

has

no

standing

institute criminal proceedings through a civil lawsuit.

to

See Cok

v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989); Newcomb v. Ingle,
827 F.2d 675, 677 n. 1 (10th Cir. 1987); see generally, Diamond
v. Charles, 476 U.S. 54, 64-65 (1986)(private citizens cannot
compel

enforcement

of

criminal

F.Supp. 515, 518 (D.Colo. 1997).

law);

Martinez

v.

Ensor,

958

Moreover, Mr. Mondonedo cannot

recover civil damages for an alleged violation of a strictly
criminal statute.

Snow v. Neece, 727 F.2d 947, 949 (10th Cir.),

cert. denied, 466 U.S. 976 (1984); see also Creech, 647 F.Supp.
at 1099.

The court concludes that plaintiff utterly fails to

establish federal court jurisdiction by alleging violations of
the cited criminal statutes.

See Weiss v. Sawyer, 28 F.Supp.2d

1221, 1227 (W.D. Okla. 1997).
Plaintiff

more

appropriately

under 28 U.S.C. § 1343.

also

asserts

jurisdiction

However, in order to state a civil

rights claim pursuant to § 1983, he must allege a deprivation of
a federal or constitutional right by a person acting under color
of state law.

Watson v. City of Kansas City, Kan., 857 F.2d

690, 694 (10th Cir. 1988).

Mr. Mondonedo makes bald assertions
12

of violations of due process and equal protection.

But, as

discussed more fully later herein, he does not allege sufficient
facts

to

show

a

violation

of

any

federal

constitutional

provision.

2.
Mr.

Diversity Jurisdiction Not Established
Mondonedo

also

fails

to

allege

sufficient

facts

to

establish that this court has diversity jurisdiction over his
claims.

As noted, federal district courts have jurisdiction

over civil actions where complete diversity of citizenship and
an amount in excess of $75,000 (exclusive of interest and costs)
in controversy exist.
provides

federal

28 U.S.C. § 1332.

district

courts

As interpreted, § 1332

with

original

diversity

jurisdiction “only if there is no plaintiff and no defendant who
are

citizens

of

the

same

State.”

See

Carden

v.

Arkoma

Associates, 494 U.S. 185, 187 (1990)(“Since its enactment, [the
Supreme Court] has interpreted the diversity statute to require
‘complete

diversity’

of

citizenship.”);

Ravenswood

Investment

Co., L.P. v. Avalon Correctional Services, 651 F.3d 1219, 1223
(10th

Cir.

2011)(stating

that

when

jurisdiction

is

based

on

diversity, “each plaintiff must be diverse from each defendant
to

have

what

is

known

as

complete

diversity”)(citation

omitted)); Gadlin v. Sybron Intern. Corp., 222 F.3d 797, 799
(10th

Cir.

2000)(quoting

Wisconsin
13

Dept.

of

Corrections

v.

Schacht,

524

U.S.

381,

388

(1998)).

For

this

type

of

jurisdiction, plaintiff had the duty to plead the citizenship of
all parties.

See e.g., Naartex Consulting Corp. v. Watt, 722

F.2d 779, 792 (D.C.Cir. 1983)(“the party seeking the exercise of
diversity

jurisdiction

bears

the

burden

of

pleading

the

citizenship of each and every party to the action” (citations
omitted)).

Diversity is determined based upon the citizenship

of the parties at the time the action was brought.
Harris, 472 F.3d 754, 758 (10th Cir. 2006).

See Symes v.

A diversity action

should be dismissed if at any time it becomes apparent that
there is a lack of diversity.
(10th

Cir.

presence

1962),

in

this

cert.
case

defendant precludes

Bradbury v. Dennis, 310 F.2d 73

denied,
of

372

Kansas

U.S.

928

citizens

as

diversity jurisdiction.

(1964).

The

plaintiff

and

See

Caterpillar,

Inc. v. Lewis, 519 U.S. 61, 67–68 (1996).
Plaintiff also asserts jurisdiction under the Kansas longarm statute.3
personal

However, this statute is only useful to obtain

jurisdiction

diversity action.

over

a

nonresident

defendant

in

a

See Pro Axess, Inc. v. Orlux Distribution,

Inc., 428 F.3d 1270, 1276 (10th Cir. 2005);

Federated Rural

Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1304-05
3
The Kansas long arm statute, K.S.A. § 60-308(b)(1)(B), provides
in pertinent part that “any person, whether or not a citizen or resident of
this state,” who commits a “tortious act within the state” does “thereby
submit() the person . . . to the jurisdiction of the courts of this state as
to any cause of action arising from the doing of (this act).”

14

(10th Cir. 1994).

As noted, the complaint in this case does not

support diversity.

FAILURE TO STATE A CLAIM
The court finds that plaintiff fails to state a claim for
relief under § 1983 because he does not allege facts showing
that defendant Noe acted under color of state law, defendant
Henderson is entitled to absolute immunity, and plaintiff does
not

allege

facts

showing

the

deprivation

of

a

federal

or

constitutional right by either defendant.

1.

Failure to Allege State Action by Defendant Noe

“To

bring

an

action

under

§

1983,

a

plaintiff

must

establish that the defendant acted under color of state law.”
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)(Section
1983 does not impose liability in the absence of action taken
under color of state law.); Wakeland v. Montano, 203 F.3d 836,
*3 (10th Cir. 2000)(Table)(citing see Pino v. Higgs, 75 F.3d
1461,

1464

individual

(10th
Noe

Cir.

liable

1996)).
under

In
1983

§

order
for

to
a

hold

private

constitutional

violation, the plaintiff must show that her conduct is “fairly
attributable to the state.”

See Pino, 75 F.3d at 1465; see also

Gallagher v. “Neil Young Freedom Concert,” 49 F.3d 1442, 1447-57
(10th

Cir.

1995)(discussing

four

tests
15

for

determining

state

action).

To

be

“fairly

attributable

to

the

state,

two

conditions must be met:
[f]irst, the deprivation must be caused by the
exercise of some right or privilege created by the
State or by a rule of conduct imposed by the State or
by a person for whom the state is responsible.
Second, the private party must have acted together
with or . . . obtained significant aid from state
officials
or
engaged
in
conduct
‘otherwise
attributable to the State.’
Pino, 75 F.3d at 1465 (quoting Wyatt v. Cole, 504 U.S. 158, 162
(1992)); West v. Atkins, 487 U.S. 42, 49 (1988)(The traditional
definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power “possessed by
virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.”).

Private acts are

not considered acts under color of state law unless that conduct
is furthered by an actual or purported state authority.

Jojola

v. Chavez, 55 F.3d 488, 493 (10th Cir. 1995); see also Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982)(court must determine whether
private

party’s

“conduct

has

sufficiently

received

the

imprimatur of the State so as to make it ‘state action’ for
purposes of the Fourteenth Amendment”).

A conspiracy between a

private party and a state official, if properly alleged, could
satisfy the state-action element.

See Tower v. Glover, 467 U.S.

914, 920 (1984)(private person acts “under color of” state law
when

engaged

in

conspiracy

with

16

state

officials

to

deprive

another of federal rights); Dixon v. City of Lawton, Okl., 898
F.2d 1443, 1449 n. 6 (10th Cir. 1990).
allegations

without

insufficient;

the

supporting

pleadings

must

However, conclusory

factual

averments

are

present

facts

specifically

showing agreement and concerted action.

Id. (“[T]o the extent

that a conspiracy may form the basis for a § 1983 claim, ‘a
plaintiff must allege specific facts showing an agreement and
concerted action amongst the defendants;’ conclusory allegations
of conspiracy are not enough.”)(citing Tonkovich v. Kansas Bd.
of Regents, 159 F.3d 504, 533 (10th Cir. 1998)); Cabututan v.
Hunsaker,

989

F.2d

507,

*2

(10th

Cir.

1993)(citing

Sooner

Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)).
In

Sooner,

the

Tenth

Circuit

instructed

that

the

pleadings

“standard is even stricter where the state officials allegedly
involved in the conspiracy are immune from suit,” as is the
county attorney in the instant case.

Id. at 512.

In Norton v.

Liddel, 620 F.2d 1375, 1380 (10th Cir. 1980), the Tenth Circuit
held

that

the

plaintiff

was

required

to

demonstrate

“the

existence of a significant nexus or entanglement between the
absolutely

immune

state

official

and

the

private

party

in

relation to the steps taken by each to fulfill the objects of
their conspiracy.”

See Cabututan, 989 F.2d at *2.

“If the

action of the defendant does not qualify as state action, then

17

the inquiry into section 1983 liability ends.”

Rendell–Baker v.

Kohn, 457 U.S. 830, 838 (1982).
To satisfy the state-action element as to private party
Noe, plaintiff maintains that Noe was engaged in one or more
conspiracies with state actor defendant Henderson.

In support,

he alleges that defendant Noe left the State of Kansas on the
advice

of

defendant

Henderson

to

avoid

criminal

prosecution;

that Henderson agreed and conspired with Noe that in exchange
for her testimony against plaintiff at his criminal trial she
would not be prosecuted; and
prosecute Noe

for her crimes.

that

Henderson

Plaintiff

then

alleges

refused to
that

these

allegations are “evident, upon information and belief.”
The court has no difficulty determining that plaintiff’s
allegations are insufficient to satisfy the “color of state law”
element with respect to defendant Noe.

The Amended Complaint

sets forth no facts suggesting that Noe was functioning in any
capacity

other

than

as

a

private

actor

at

the

time

she

is

alleged to have signed another’s name to plaintiff’s school loan
documents.

See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 50 (1999)(the state law requirement of § 1983 necessarily
“excludes from its reach merely private conduct, no matter how .
. . wrongful”)(internal quotation marks and citations omitted).
Nor is there any indication of a nexus between her and defendant
Henderson or any other state official at this time.
18

Plaintiff does not plead facts showing that Noe’s move out
of

state

was

“made

possible

only

because

clothed with the authority of state law.”

the

wrongdoer

is

West, 487 U.S. at 49.

Nor is Noe’s move shown to have violated plaintiff’s federal
constitutional rights
manner.

or

to have been unlawful

in any

other

Plaintiff alleges that by moving, defendant Noe escaped

prosecution for criminal acts that damaged him monetarily.

He

also alleges that defendant Henderson refused to prosecute her
and discouraged others from doing so.

However, Mr. Mondonedo

had no constitutional right to have Noe criminally prosecuted.
Nelson

v.

Skelan,

2010)(unpublished),

386
cert.

783,

Fed.Appx.
denied,

131

786

(10th

S.Ct.

912

(2011).

Cir.
He

claims that his personal remedies against Noe were denied by
defendants’ acts.

Yet he does not allege that he attempted to

recover his monetary losses from Noe by way of an appropriate
civil tort action in state court and was prevented from doing so
because of Noe’s move or any act on the part of Henderson.
Noe’s
police

did

Continental
1987)(no

act
not

of

reporting
constitute

Airlines,

state

action

Inc.,
for

suspected
state
823

action.

F.2d

private

criminal

See

1402,

party

activity

1404

who

Carey
(10th

complaints

to
v.
Cir.
to

police, who then arrest plaintiff); Nielander v. Board of County
Com’rs of County of Republic, Kan., 582 F.3d 1155, 1166 (10th
Cir. 2009); see also Scott v. Hern, 216 F.3d 897, 906–07 (10th
19

Cir. 2000); Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.
1983)(“We know of no case in which the report of a state crime
is action under color of state law.

The mere furnishing of

information to police officers does not constitute joint action
under color of state law which renders a private citizen liable
under §§ 1983 or 1985.”).
Likewise,
neither

Noe’s testifying at

constituted

state

action

federal constitutional rights.4

plaintiff’s
nor

criminal trial

violated

plaintiff’s

Witnesses do not act under color

of state law and in any event are absolutely immune to suit for
money damages.
LaHue,

460

U.S.

See Hunt, 17 F.3d at 1268 (citing Briscoe v.
325,

341,

345-46

(1983)(All

witnesses

enjoy

absolute immunity from civil liability under § 1983 for their
testimony in a prior trial.); Snell v. Tunnell, 920 F.2d 673,
686 (10th Cir. 1990).
Underlying facts are not provided to show that plaintiff’s
conclusory

statements

of

a

conspiracy

4

are

more

than

mere

If plaintiff is suggesting that Noe testified falsely at his
criminal trial in exchange for the prosecutor’s agreement not to prosecute
her on unrelated charges, such a claim must have been fully litigated as a
challenge to his state conviction in the first instance.
The criminal
prosecution of plaintiff was not terminated in his favor, and he does not
allege that his convictions have been overturned on either direct or
collateral
appeal.
Under
these
circumstances,
any
challenge
to
his
prosecution is premature. Heck v. Humphrey, 512 U.S. 477 (1994)(holding that
prisoners may not recover damages under 1983 “for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid” unless the
conviction or sentence has been “reversed, expunged, invalidated or impugned
by grant of a writ of habeas corpus.”)

20

speculation on his part.5

The complaint as a whole is utterly

devoid of fact allegations showing the requisite meeting of the
minds and an “agreement” between defendants to commit acts that
would

violate

sum,

the

plaintiff’s

court

defendants

finds

shared

a

federal

that
common

constitutional rights.

constitutional

plaintiff

fails

goal

rights.

violate

to

to

show
his

In
that

federal

The court concludes that defendant Noe

is not shown to have acted under color of state law.

Sigmon v.

Community HMO, Inc., 234 F.3d 1121, 1126 (10th Cir. 2000).

2. Defendant Henderson Absolutely Immune to Damages Suit
Based
opposed

upon

to

the

the

fact

allegations
statements,

conclusory

in

the

the

complaint,

court

finds

as

that

absolute immunity protects defendant Henderson from liability in
this

lawsuit.

Imbler

(1976)(prosecuting

v.

attorneys

Pachtman,
are

424

absolutely

U.S.
immune

409,
for

430
those

activities which are “intimately associated with the judicial
phase

of

the

criminal

process.”).

Consequently,

plaintiff’s

allegations that defendant Henderson suborned Noe’s testimony in
County District Court and helped her cover up her own crimes to
appear more credible

are barred by the doctrine of absolute

prosecutorial immunity.

See Miller v. Glanz, 948 F.2d 1562,

1570 (10th Cir. 1991)(absolute immunity extends to claim that
5

Plaintiff’s allegation that defendant Henderson acted as plaintiff’s
“legal advocate” is supported by no facts whatsoever.

21

prosecutor conspired with witnesses to give false testimony);
Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.), cert. denied,
513 U.S. 832 (1994).

The same is true regarding plaintiff’s

claims

Henderson

that

defendant

declined

to

prosecute

Noe.

Whether and when to prosecute and the handling of prosecution
witnesses are decisions made by a prosecutor in the course of
his duty as an advocate.

Imbler, 424 U.S. at 431 n. 33.

As the

Tenth Circuit Court of Appeals stated in Dohaish v. Tooley, 670
F.2d 934, 938 (10th Cir.), cert. denied, 459 U.S. 826 (1982):
“the decision not to prosecute criminal charges is similar to
the decision to prosecute and should therefore be protected by
absolute immunity.”

Hammond v. Bales, 843 F.2d 1320, 1321 (10th

Cir. 1988).
Under

28

U.S.C.

§

1367,

a

court

has

supplemental

jurisdiction of a plaintiff’s state law claims that arose from
the “same nucleus of operative facts,” but only if jurisdiction
is properly invoked under either § 1331 or § 1332.
foregoing

findings

that

jurisdiction

has

not

Based on the
been

properly

invoked, the court declines to consider plaintiff’s state law
claims.

SUMMARY
In sum, this court does not have jurisdiction to hear a
case between citizens of the same state that does not involve
22

claims under federal civil laws or the Constitution.
is

given

time

to

show

cause

why

this

action

Plaintiff

should

not

be

dismissed for lack of jurisdiction and failure to state a claim.
If he fails to show good cause within the specified time, this
action may be dismissed without further notice.

DENIAL OF MOTION FOR PROTECTIVE ORDER
Plaintiff has filed a Motion for Protective Order (Doc. 7).
In this motion, he asks the court to restrain “defendants” from
punishing him for serving legal documents upon defendants in
this case.

The two defendants in this action have not been and

need not be served in this case until the screening process is
completed.

Since defendants have not been served, they are not

yet required to respond to any motion or materials filed by
plaintiff.

It is not clear at this juncture that this court has

jurisdiction over Noe or the subject matter of this complaint,
or that plaintiff states a federal constitutional claim.

In any

event, there are no facts alleged in the motion showing that
plaintiff is under threat of being
defendant.

punished

by either named

Prison officials are not defendants in this action,

and no order may be entered against non-parties.

The court

denies this motion as frivolous because it is not supported by
facts or legal authority showing that plaintiff is entitled to
the requested court action.
23

IT IS THEREFORE BY THE COURT ORDERED

that plaintiff is

granted thirty (30) days in which to submit to the court an
initial partial filing fee of $ 10.00.

Any objection to this

order must be filed on or before the date payment is due.
failure

to

pay

the

fees

as

required

herein

may

result

The
in

dismissal of this action without prejudice.
IT

IS

FURTHER

ORDERED

that

within

the

same

thirty-day

period, plaintiff is required to show cause why this action
should not be dismissed for lack of jurisdiction and for failure
to state a federal constitutional claim.
IT

IS

FURTHER

ORDERED

that

plaintiff’s

Motion

Protective Order (Doc. 7) is denied.
IT IS SO ORDERED.
Dated this 9th day of August, 2012, at Topeka, Kansas.

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

24

for