Price v. State of Kansas et al

Filing 13

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including January 11, 2013, to show cause why this matter should not be dismissed based upon the prosecutorial immunity of defendant Hawkins and upon plaintiff's failure to present the c laims for relief within the two-year limitation period. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by Senior District Judge Sam A. Crow on 12/12/2012. (Mailed to pro se party Jerrell Price by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JERRELL PRICE,
Plaintiff,
v.

CASE NO. 12-3227-SAC

STATE OF KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. The action was transferred to this court from the U.S. District
Court for the Middle District of Tennessee. Plaintiff, a prisoner held
at the Montgomery County Jail, Clarksville, Tennessee, proceeds pro
se and in forma pauperis.
Upon its receipt of this matter, the court conducted an initial
review and issued an order setting forth its finding that plaintiff
set forth two types of claims: first, a complaint that he had received
inadequate medical care during his incarceration in Dickinson County,
Kansas, and second, a complaint concerning defects in the criminal
proceedings that ended in his conviction. Next, the court advised
plaintiff that a challenge to the conditions of his confinement must
be presented under § 1983, while a challenge to the legality of his
conviction must be presented in an application for habeas corpus
relief after exhaustion of available state court remedies. The court
directed the clerk of the court to provide plaintiff with appropriate
form pleadings and granted plaintiff time to submit the completed
§1983 form.
Plaintiff has submitted the § 1983 form (Doc. 12), and the court
has examined that pleading. After conducting that review, the court

is considering the dismissal of this action.
First, to the extent plaintiff seeks relief against an assistant
district attorney based upon a challenge to his conviction, plaintiff
states no claim for relief under § 1983. As set forth in the court’s
earlier order, a challenge to the validity of the conviction must be
made in an application for habeas corpus relief. Likewise, to the
extent plaintiff might seek damages against the assistant district
attorney, that defendant is entitled to absolute prosecutorial
immunity from an action for such relief when the claim arises from
the performance of a prosecutor’s functions that are “intimately
associated with the judicial phase of the criminal process.” Imbler
v. Pachtman, 424 U.S. 409, 430-31 (1976). Here, it appears the
plaintiff challenges the characterization of his criminal conduct as
incest. Such a charging decision, however, is within the core function
of a prosecutor.
Next, to the extent that plaintiff seeks relief arising from the
alleged failure to provide him with adequate medication and access
to a C-PAP machine during his incarceration in Dickinson County,
Kansas, the court finds his claim is not timely.
The statute of limitations for a complaint filed pursuant to
§1983 “is drawn from the personal-injury statute of the state in which
the federal district court sits.” Mondragon v. Thompson, 519 F.3d
1078, 1082 (10th Cir. 2008). In Kansas, the applicable period is the
two-year limitation period in K.S.A. § 60-503(a)(4) for “injury to
the rights of another.” Garcia v. Univ. of Kan., 702 F.2d 849, 851
(10th Cir. 1983).
While the limitation period is determined by reference to state
law, federal law determines when the federal claim accrues. See Baker

v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993). “A § 1983 action
accrues when facts that would support a cause of action are or should
be

apparent.”

Fogle

v.

Pierson,

435

F.3d

1252,

1258

(10th

Cir.)(internal citation omitted), cert. denied, 549 U.S. 1059 (2006).
The plaintiff’s amended complaint states that following his
arrest and extradition to Kansas in December 2009, he was held in
Dickinson County. He was denied access to C-PAP equipment and removed
from the pain and respiratory medication he had. (Doc. 12, p. 2.) This
continued until June 2010. Id., p. 3. The deprivations described by
the plaintiff suggest he had immediate notice of them. Because the
plaintiff did not present his action until September 2012, he failed
to assert his claims within the two-year limitation period.
Accordingly, the court will direct plaintiff to show cause why
this matter should not be dismissed for the reasons set forth.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including January 11, 2013, to show cause why this matter should
not be dismissed based upon the prosecutorial immunity of defendant
Hawkins and upon plaintiff’s failure to present the claims for relief
within the two-year limitation period. The failure to file a timely
response may result in the dismissal of this matter without additional
prior notice.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 12th day of December, 2012, at Topeka, Kansas.

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