Pusha v. Waller et al

Filing 3

MEMORANDUM AND ORDER ENTERED: This matter is dismissed due to the absolute immunity of the judges and prosecutor named as defendants and because no claim for relief is stated against the defendant public defender. Plaintiff's motion 2 for le ave to proceed in forma pauperis is granted. Collection action shall continue until plaintiff satisfies the $350.00 filing fee. Signed by Senior District Judge Sam A. Crow on 1/23/2013. (Mailed to pro se party Mychel Pusha by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MYCHEL PUSHA,
also known as
MICHAEL D. PUSHA,

Plaintiff,

v.

CASE NO. 12-3253-SAC

GREGORY L. WALLER, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner at the Sedgwick County Jail, Wichita,
Kansas, proceeds pro se and seeks leave to proceed in forma pauperis.
Motion to proceed in forma pauperis
The court has examined the financial statement submitted in
support of the motion to proceed in forma pauperis and finds the
plaintiff lacks the resources to pay an initial partial filing fee.
Accordingly, the court grants the motion and does not impose an initial
partial filing fee.1 See §1915(b)(4)(“In no event shall a prisoner be
prohibited from bringing a civil action…for the reason that the
prisoner has no assets and no means by which to pay the initial partial
filing fee.”)

1

Plaintiff is advised that he remains obligated to pay the statutory filing fee
of $350.00 in this action. The Finance Office of the facility where he is incarcerated
will be directed by a copy of this order to collect from plaintiff’s account and
pay to the clerk of the court twenty percent (20%) of this prior month’s income each
time the amount in plaintiff’s account exceeds ten dollars ($10.00) until the filing
fee has been paid in full. Plaintiff is directed to cooperate fully with his custodian
in authorizing disbursements to satisfy the filing fee, including providing any
written authorization required by the custodian or any future custodian to disburse
funds from his account.

Screening
The complaint names as defendants three Sedgwick County district
court judges, a public defender, and an assistant district attorney.
Plaintiff states he was arrested in Virginia in October 2011 on a
fugitive warrant and charged with theft. He states all charges were
dismissed at trial and his immediate relief was ordered. However, he
states that because the Kansas fugitive warrant remains in the
National Crime Information Center (NCIC) index, he now is unlawfully
incarcerated. He asserts denials of due process, double jeopardy,
cruel and unusual treatment, ineffective assistance of counsel, and
mental anguish, and he seeks monetary relief.
A federal court must conduct a preliminary screening of a case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915(a). At this
stage, the court must identify any cognizable claim and must dismiss
any claim that is frivolous, malicious, fails to state a claim for
relief, or seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b).
Having reviewed the complaint, the court finds this matter is
subject to dismissal.
First, the judicial officers named as defendants are immune from
monetary damages. “Judges have absolute immunity from suits for
monetary damages for their judicial acts, including sentencing.”
Calvert v. Safranek, 209 F.App’x 816, 820 (10th Cir. 2006)(unpublished
order)(citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)).
Likewise, the assistant district attorney is protected by
immunity. “[A]cts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in

the course of his [or her] role as an advocate for the State, are
entitled to the protections of absolute immunity.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
Finally, the defendant public defender is not a state actor under
§ 1983, and therefore is not a proper party. Polk County v. Dodson,
454 U.S. 312, 381 (1981)(holding that “a public defender does not act
under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding”). Thus,
no claim for relief is stated against this defendant.
To the extent plaintiff may seek release from his present
custody, he must pursue relief in the state courts before he may bring
a federal writ of habeas corpus, the sole federal remedy for one
challenging the validity of his incarceration. See Preiser v.
Rodriguez, 411 U.S. 475, 502 (1973).
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
due to the absolute immunity of the judges and prosecutor named as
defendants and because no claim for relief is stated against the
defendant public defender.
IT IS FURTHER ORDERED plaintiff’s motion for leave to proceed
in forma pauperis (Doc. 2) is granted. Collection action shall
continue until plaintiff satisfies the $350.00 filing fee.
Copies of this order shall be transmitted to the plaintiff and
to the finance office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 23rd day of January, 2013, at Topeka, Kansas.

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