Foster v. Langdon et al

Filing 3

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is provisionally granted. Plaintiff is granted twenty (20) days to show cause why the complaint should not be dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). Signed by Senior District Judge Sam A. Crow on 10/16/2012. (Mailed to pro se party Modest T. Foster by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MODEST T. FOSTER,
Plaintiff,
v.

CASE NO. 12-3213-SAC

ANDREW T. LANGDON, et al.,
Defendants.

O R D E R
This matter comes before the court on a pro se complaint seeking
relief under 42 U.S.C. § 1983.

Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915 is provisionally
granted, subject to modification if there is any showing that
plaintiff has sufficient financial resources to pay the district court
filing fee and costs of this action.1
Plaintiff seeks damages and injunctive relief on allegations of
constitutional deprivation related to plaintiff’s arrest and pretrial
confinement on charges of aggravated assault and domestic battery.
See State v. Foster, Shawnee County District Court Case 12-CR-321.
The defendants named in the complaint are Topeka Police Department
(TPD) Sgt. Andrew Langdon, TPD Officer Morgan Bracken, TPD Officer
Gregory Pert, Shawnee County Sheriff Department (SCSD) Capt. Lance
1

It does not appear that plaintiff was a prisoner when he initiated this action
on October 3, 2012, with a complaint and undated civil cover sheet. The court notes,
however, that plaintiff’s motion for leave to proceed without prepayment of fees
is dated May 4, 2012, is submitted on a form motion for use by prisoners, and is
supported by the inmate financial records required of a prisoner seeking leave to
proceed in forma pauperis. See 28 U.S.C. § 1915(a)(2).

Royer, SCSD Sgt. Matt Biltoft, Shawnee County Corrections Director
Richard Kline, Corizon – as the heath care provider for Shawnee County
Correctional Facility, Shawnee County District Attorney (DA) Chadwick
Taylor, Assistant DA Joshua Smith, Assistant DA Emily Yessen, the City
of Topeka, Shawnee County, and the State of Kansas.
Plaintiff first claims defendants Pert, Bracken, Biltoft, and
Royer violated the Fourth Amendment by coercing a written statement
from the alleged victim.

Second, plaintiff claims these same

defendants violated the Fifth Amendment by confining and questioning
him without reading him his Miranda2 rights.

And third, plaintiff

claims various defendants3 acted with deliberate indifference to his
medical needs in violation of the Fourteenth Amendment, K.S.A.
21-3425, and 28 U.S.C. § 1986.
Having reviewed the complaint, the court finds it is subject to
being summarily dismissed because plaintiff’s allegations state no
claim upon which relief can be granted under 42 U.S.C. § 1983.4
Fourth and Fifth Amendments
Plaintiff cites his preliminary hearing on March 20, 2012, on
charges of aggravated assault and domestic battery, and the dismissal
2

See Miranda v. Arizona, 384 U.S. 436 (1966).
On this claim plaintiff references Corizon, the Shawnee County Correctional
Facility, Kline, Taylor, Smith, Yessen, the City of Topeka, Shawnee County, and the
State of Kansas.
4
Nor is there any legal basis for granting relief under the K.S.A. 21-3425 or
42 U.S.C. § 1986.
K.S.A. 21-3425, repealed effective July 1, 2011, now recodified at K.S.A.
21-5416, makes mistreatment of a confined person a class A person misdemeanor. A
private litigant, however, has no authority to initiate a criminal action, and
alleged violations of a criminal statute do not give rise to a private right of
action. See e.g. 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”).
While 42 U.S.C. § 1986 authorizes an action against individuals failing to
take action or correct a conspiracy “motivated by some racial, or perhaps otherwise
class-based, invidiously discriminatory animus,” 42 U.S.C. § 1985(3), no such
conspiracy is alleged or evident in this case.
3

of those charges on May 9, 2012, prior to any trial to the court or
a jury.
Plaintiff’s Fourth Amendment claim fails as a matter of law
because plaintiff has no standing to assert the violation of the
alleged victim’s rights under the Fourth Amendment.

See Doyle v.

Oklahoma Bar Ass’n, 998 F.2d 1559, 1566 (10th Cir.1993)(“[O]ne does
not have standing to assert a violation of rights belonging to another,
since the person entitled to a right is the only one who can be directly
injured by its deprivation.”).
Plaintiff’s

Fifth

Amendment

claim

also

fails

because

no

statement made by plaintiff during custodial interrogation was used
against plaintiff at trial.

The Constitution only guarantees

plaintiff “the right to be free from self-incrimination,” not the
right to receive Miranda warnings.
1263 (10th Cir.1976).

Bennett v. Passic, 545 F.2d 1260,

An officer's failure to give Miranda warnings

is not a Constitutional violation when un-Mirandized statements are
not used in court.

See id.; Lucero v. Gunter, 17 F.3d 1347, 1350–

51 (10th Cir.1994).
Deliberate Indifference
"Under the Fourteenth Amendment's Due Process Clause, pretrial
detainees are entitled to the same degree of protection against denial
of medical care as that afforded to convicted inmates under the Eighth
Amendment."

Estate of Hocker by Hocker v. Walsh, 22 F.3d 995, 998

(10th Cir.1994).

Thus a pretrial detainee’s claim that he received

inadequate medical treatment while he was in jail is evaluated under
the standard of "deliberate indifference to serious medical needs."
Id. (quotation omitted).

In the present case, plaintiff alleges only that medical care
was delayed or denied during his pretrial confinement, which caused
some unidentified condition to worsen.

This bare allegation is

insufficient to provide a factual basis for plausibly finding that
any defendant personally participated in denying plaintiff necessary
medical care, or acted with deliberate indifference to a serious
medical need of plaintiff.

See Bell Atlanta Corp. v. Twombly, 550

U.S. 544, 555 (2007)( A complaint must contain enough "facts to state
a claim to relief that is plausible on its face" and the factual
allegations "must be enough to raise a right to relief above the
speculative

level.")

Accordingly,

absent

amendment

of

the

complaint, plaintiff’s conclusory Fourteenth Amendment claim of
deliberate indifference is subject to being summarily dismissed.

See

Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir.1991)( "[C]onclusory
allegations without supporting factual averments are insufficient to
state a claim upon which relief can be based.").
Plaintiff is further advised that a constitutional claim of
deliberate

indifference

against

a

municipality

or

corporation

requires a showing that necessary medical treatment was denied or
delayed pursuant to a municipal or corporate policy or custom.

Monell

v Department of Social Services, 436 US 658 (1978); Dubbs v. Head
Start, Inc., 336 F.3d 1194 (10th Cir.2003).
Eleventh Amendment
Additionally, plaintiff’s claim for damages against the State
of Kansas is barred by the Eleventh Amendment.
But for limited exceptions not applicable in this case, the
Eleventh Amendment prohibits a citizen from filing suit against a

state in federal court.”
Cir.2002).

Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th

"Eleventh Amendment immunity applies regardless of

whether a plaintiff seeks declaratory or injunctive relief, or money
damages."

Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250,

1252 (10th Cir.2007)(citation omitted).

The State of Kansas has not

waived immunity under 42 U.S.C. § 1983, nor has its immunity been
abrogated for § 1983 lawsuits.

See Saunders ex rel. Rayl v. Kan. Dept.

of Social and Rehabilitation Services, 317 F.Supp.2d 1233, 1241
(D.Kan.2004).
Notice and Show Cause Order to Plaintiff
For the reasons stated herein, plaintiff is directed to show
cause why the complaint should not be summarily dismissed as stating
no claim for relief.

28 U.S.C. § 1915(e)(2)(B)(ii).

See Lister v.

Department of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005)(28 U.S.C.
§ 1915(e)(2)(B) requires a district court to dismiss the complaint
of a party proceeding in forma pauperis whenever the court determines
that the action is frivolous or malicious or fails to state a claim
on which relief may be granted); Lopez v. Smith, 203 F.3d 1122, 1126
(9th Cir.2000)(§ 1915(e) applies to all in forma pauperis complaints,
not just those filed by prisoners); McGore v. Wrigglesworth, 114 F.3d
601, 608 (6th Cir.1997)(§ 1915(e) is not restricted to actions brought
by prisoners), overruled on other grounds by Jones v. Bock, 549 U.S.
199 (2007).

The failure to file a timely response may result in the

complaint being dismissed without further prior notice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is provisionally granted.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days

to show cause why the complaint should not be dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS SO ORDERED.
DATED:

This 16th day of October 2012 at Topeka, Kansas.

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