Brown v. Kern et al

Filing 6

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is provisionally granted subject to plaintiff's submission within thirty (30) days of an initial partial filing fee of $19.50, and that payment of the remain der of the district court filing fee be paid as authorized by 28 U.S.C. 1915(b)(2). Plaintiff's motions 3 & 4 to change venue are denied. The complaint is dismissed as stating no claim for relief. Signed by Senior District Judge Richard D. Rogers on 1/16/2013. (Mailed to pro se party James L. Brown, Sr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES L. BROWN, SR.,
Plaintiff,
v.

CASE NO. 12-3236-RDR

ARON KERN, et al.,
Defendants.

O R D E R
Before the court is form civil complaint seeking relief under
42 U.S.C. ' 1983, filed pro se by a prisoner confined in the Sedgwick
County jail in Wichita, Kansas.

Also before the court is plaintiff=s

motion for leave to proceed in forma pauperis under 28 U.S.C. ' 1915.
Motion for Leave to Proceed In Forma Pauperis
Plaintiff must pay the full $350.00 district court filing fee
in this civil action.

See 28 U.S.C. ' 1915(b)(1)(prisoner bringing

a civil action or appeal in forma pauperis is required to pay the full
filing fee).

If proceeding in forma pauperis, plaintiff may pay this

filing fee over time, as provided by payment of an initial partial
filing fee to be assessed by the court under 28 U.S.C. ' 1915(b)(1)
and by periodic payments from plaintiff's inmate trust fund account
as authorized in 28 U.S.C. ' 1915(b)(2).
Pursuant to 28 U.S.C. ' 1915(b)(1), the court is required to
assess an initial partial filing fee of twenty percent of the greater
1

of the average monthly deposits or average monthly balance in the
prisoner's account for the six months immediately preceding the date
of filing of a civil action.

Having examined the records provided

for that relevant period, the court assesses an initial partial filing
fee of $19.50, twenty percent of plaintiff’s average monthly deposit,
rounded to the lower half dollar.
Initial Screening of the Complaint
Plaintiff is a prisoner, thus the court is required to screen
the complaint and to dismiss it or any portion thereof that is
frivolous, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant immune from such relief.
U.S.C. ' 1915A(a) and (b).

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See also 28 U.S.C. ' 1915(e)(2)(B)(a

complaint may be dismissed on initial review if the claim is malicious
or frivolous, fails to state a claim on which relief may be granted,
or seeks monetary relief against a defendant who is immune from such
relief).

Having reviewed plaintiff=s allegations with the liberality

afforded to pro se litigants, the court finds the complaint should
be summarily dismissed as stating no claim upon which relief can be
granted under § 1983.
Plaintiff is confined pending prosecution of criminal charges.
He seeks damages, his immediate release, dismissal of all charges,
and for criminal charges to be filed against each of the defendants.
The

defendants

named

in

this

action

are

two

Sedgwick

County

detectives, two attorneys in the Sedgwick District Attorney’s office,
three Sedgwick County District Court judges, three appointed defense
attorneys, and a United States District Court judge.

Plaintiff

broadly complains of a conspiracy to commit and cover up perjury, false
2

swearing, and false evidence in his pending criminal prosecution, and
contends

appointed

ineffective.

defense

counsel

have

been

constitutionally

Plaintiff also claims a Sedgwick County District Court

judge assaulted plaintiff by ordering plaintiff’s mouth to be covered
in court.
As in cases plaintiff recently filed in this court concerning
his present confinement and state criminal prosecution, plaintiff
submits documents that include the caption in his pending criminal
case.1

Featured in the present case are plaintiff’s requests for a

change of venue to the United States Court of Appeals for the Tenth
Circuit.

To the extent plaintiff is attempting to remove his pending

state criminal action to federal court, these requests are legally
frivolous.
Additionally, to the extent plaintiff seeks his release and the
dismissal of all charges, based on allegations of being unlawfully
charged or denied due process in his state criminal proceeding, the
federal remedy lies in habeas corpus after plaintiff has exhausted
state court remedies on his allegations of error.

Plaintiff’s claim

for damages on these allegations is premature at best.

It is also

well established that a private individual has no federal right to
the prosecution of another.

See Doyle v. Oklahoma Bar Association,

998 F.2d 1559, 1566 (10th Cir.1993).

See also Winslow v. Romer, 759

F.Supp. 670, 673 (D.Colo.1991)("Private citizens generally have no

1See Brown v. State of Kansas, Case No. 12-3001-SAC (§ 2254 petition dismissed
without prejudice based upon plaintiff’s nonexhaustion of state court remedies);
Brown v. Sedgwick County Sheriff’s Office, Case No. 12-3122-SAC (§ 1983 complaint
dismissed as stating no claim for relief, and without prejudice to pursuit of habeas
corpus); Brown v. KSNW-TV News, Case No. 12-3123-SAC (§ 1983 complaint dismissed
as legally frivolous and as stating no claim for relief); Brown v. State of Kansas,
Case No. 12-3206-SAC (§ 2254 petition dismissed without prejudice).

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standing to institute federal criminal proceedings.").
To the extent plaintiff seeks damages on allegations of being
assaulted when the state court judge ordered plaintiff’s mouth to be
covered, no claim for relief under § 1983 is presented by this state
tort claim.

Moreover, plaintiff’s court appointed attorneys are not

persons acting under color of state law, for purposes of stating a
claim for relief under § 1983, notwithstanding plaintiff’s bare and
conclusory claim of a conspiracy.

And it is also well recognized

immunities bar plaintiff’s claims for damages against the federal and
state court judges and state prosecutors.
Finding it clear on the face of the complaint that it would be
futile to afford plaintiff an opportunity to correct these identified
deficiencies, the court concludes the complaint should be summarily
dismissed as stating no claim for relief under § 1983.2

See Curley

v. Perry, 246 F.3d 1278, 1281-82 (10th Cir.), cert. denied, 534 U.S.
922 (2001)(summary dismissal for failure to state a claim is proper
when it is patently obvious the plaintiff cannot prevail, and
providing opportunity to amend the complaint would be futile).
IT IS THEREFORE ORDERED that plaintiff=s motion for leave to
proceed in forma pauperis (Doc. 2) is provisionally granted subject
to plaintiff’s submission within thirty (30) days of an initial
partial filing fee of $19.50, and that payment of the remainder of
the district court filing fee is to be paid as authorized by 28 U.S.C.
' 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s motions to change venue
2

Dismissal of the complaint as stating no claim for relief constitutes a
Astrike@ under 28 U.S.C. ' 1915(g).

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(Docs. 3 and 4) are denied, and that the complaint is dismissed as
stating no claim for relief.
Copies of this order shall be mailed to plaintiff and to the
Finance Officer where plaintiff is currently confined.
DATED:

This 16th day of January 2013 at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
U.S. Senior District Judge

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