Brooks (ID 33599) v. Kansas, State of et al

Filing 5

ORDER ENTERED: Plaintiff's motion 3 for leave to proceed in forma pauperis is granted. Plaintiff's motion 4 for leave to file a first amended complaint is granted. The first amended complaint is dismissed. Signed by Senior District Judge Sam A. Crow on 4/3/2013. (Mailed to pro se party Michael Lee Brooks by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL LEE BROOKS,
Plaintiff,
v.

CASE NO. 12-3260-SAC

STATE OF KANSAS, et al.,
Defendants.

O R D E R
This matter comes before the court on form complaint for seeking
relief under 42 U.S.C. § 1983. Plaintiff is a prisoner incarcerated
in the Larned Correctional Mental Health Facility (LCMFH) in Kansas.
He seeks monetary relief from the State of Kansas and David (Rick)
Roberts on four claims related to allegation concerning his arrest
and prosecution in 1982, and to his resulting continuing confinement.
In an order dated January 29, 2013, the court directed plaintiff
to pay the $350.00 district court filing fee, or to file a motion for
leave to proceed in forma pauperis under 28 U.S.C. § 1915.

In

response, plaintiff filed a motion for leave to amend his complaint,
and a motion for in forma pauperis status.
Pursuant

to 28 U.S.C. § 1915A, the court also reviewed

plaintiff’s allegations and directed plaintiff to show cause why the
complaint should not be dismissed as stating no claim for relief.
In response, plaintiff submitted a Motion for Leave to File a First
Amended Complaint, presumably to address identified deficiencies.

Because plaintiff is entitled to amend his complaint once without
leave of the court, Fed.R.Civ.P. 15(a)(1), the court grants this
pending motion and reviews the amended complaint to determine if it
or any claim therein should be summarily dismissed.

28 U.S.C. §

1915A(a)-(b).
In Forma Pauperis, 28 U.S.C. § 1915
Plaintiff must pay the full $350.00 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 granted leave to proceed in forma pauperis, plaintiff is entitled
to 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 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 considered the financial records provided by plaintiff,
the court finds no initial partial filing fee may be imposed at this
time due to plaintiff's limited resources, and grants plaintiff leave
to proceed in forma pauperis.

See 28 U.S.C. ' 1915(b)(4)(where inmate

has no means to pay initial partial filing fee, prisoner is not to
be prohibited from bringing a civil action).

Plaintiff remains

obligated to pay the full $350.00 district court filing fee in this
civil action, through payments from his inmate trust fund account as
authorized by 28 U.S.C. ' 1915(b)(2).

Review of the Amended Complaint, 29 U.S.C. § 1915A
The court first notes the amended complaint no longer contains
plaintiff’s “eminent domain” claim regarding the alleged use of force
to arrest and assault plaintiff at his workplace.Plaintiff concedes
this claim in his original complaint lacks legal merit.
Plaintiff’s first amended complaint continues to name the State
of Kansas and David “Rick” Roberts as the only defendants, but now
states that each defendant is sued in their individual and official
capacity.

As in the original complaint, plaintiff alleges he was

unlawfully arrested and prosecuted on false charges.

He contends

that his resulting wrongful confinement denied him equal protection
and due process, and that his incarceration subjected him to cruel
and unusual punishment by putting his life at risk.

He further

contends he was slandered and defamed by being designated a sex
offender, and maintains his lawsuit is timely because he is being
subjected to a continuing wrong.
Likewise,

as in the original complaint, plaintiff seeks

unspecified injunctive relief and damages for himself and other LCMHF
prisoners, for increased funding for the Kansas Department of
Corrections to allow expansion of the Larned facility and increased
wages for LCMHF employees, and for specific tax relief to Larned County
residents.
Having reviewed the amended complaint, the court finds it should
be summarily dismissed for reasons stated herein and previously
identified in the show cause order to plaintiff.
First, plaintiff’s claims for damages against the State of Kansas
and against defendant Roberts in his official capacity are barred by

the Eleventh Amendment, and plaintiff identifies no prospective
injunctive relief that might allow his lawsuit to proceed against this
defendant.

See Robinson v. Kansas, 295 F.3d 1183, 1191 (10th

Cir.2002)(setting forth exceptions to sovereign immunity doctrine in
Ex parte Young, 209 U.S. 123 (1908)); Schroeder v. Kochanowski, 311
F. Supp.2d 1241, 1254 (D. Kan. 2004)(Eleventh Amendment protects
county attorney’s acts in prosecuting crimes).
Second, to the extent plaintiff seeks injunctive relief to cure
alleged constitutional error in his state conviction and sentence,
his exclusive remedy lies in habeas corpus as provided by relevant
federal and state statutes.
(2005).

Wilkinson v. Dotson, 544 U.S. 74, 78

A prisoner in state custody cannot use a § 1983 civil rights

action to challenge the "fact or duration of his confinement."
Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).
Third, "a state prisoner’s § 1983 action is barred (absent prior
invalidation) - no matter the relief sought (damages or equitable
relief), no matter the target of the prisoner’s suit (state conduct
leading to conviction or internal prison proceedings) - if success
in that action would necessarily demonstrate the invalidity of
confinement or its duration."

Wilkinson, 544 U.S at 81-82 (citing

Heck v. Humphrey, 512 U.S. 477 (1997)).

Thus to the extent

plaintiff’s allegations of error in his 1982 conviction necessarily
implicate the validity of that conviction, no claim for damages
accrues until plaintiff can demonstrate his 1982 conviction has been
overturned or otherwise invalidated.

The original and amended

complaints plainly disclose that plaintiff can make no such showing
regarding his 1982 conviction.

Fourth, plaintiff’s allegations of false arrest, defamation, and
slander present no actionable claim for relief under § 1983, even if
any such claim could now be timely raised. See DeShaney v. Winnebago
County DSS, 489 U.S. 189, 201-03 (1989)(§ 1983 does not impose
liability for violations of duties of care arising out of state tort
law); Reeve v. Oliver, 41 F.3d 381, 383 (8th Cir. 1994)(although harm
may be caused by state actor, § 1983 does not turn Fourteenth Amendment
into fount of tort law that supersedes existing tort actions under
state law).

Additionally, because the court finds no federal claim

for relief is stated in the amended complaint, the court declines to
exercise it supplemental jurisdiction over any possible state tort
claim.

See 28 U.S.C. § 1367(c)(3)(stating a district court may

decline to exercise supplemental jurisdiction over a state law claim
if

it "has dismissed all claims over which it has original

jurisdiction").
Fifth, plaintiff makes no showing as to his claim for damages
why
defendant Roberts in his individual capacity is not barred by
prosecutorial immunity, or necessarily defeated by no showing of this
defendant’s personal participation in any cognizable violation of
plaintiff’s constitutional rights.

See Imbler v. Pachtman, 424 U.S.

409, 430 (1976)(recognizing prosecutorial immunity for activities
intimately associated with judicial phase of the criminal process);
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976)(the personal
participation of a defendant is an essential allegation in a § 1983
action).
And finally, there is no sound basis in fact or law for the
specific monetary relief plaintiff seeks. Plaintiff cannot proceed

in this matter seeking relief on behalf of other LCMHF prisoners.
Nor
can he demand that the State of Kansas provide identified tax relief
or increased funding for a state agency, a state facility, and state
employees.
The court thus concludes the amended complaint should be
dismissed as stating no claim upon which relief can be granted under
§ 1983, and as seeking monetary relief from a party immune from such
relief.

28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). Dismissal

of the complaint is without prejudice to any potential claim that is
barred by Heck at this time.
IT IS THEREFORE ORDERED that plaintiff =s motion for leave to
proceed in forma pauperis (Doc. 3) is granted, and that payment of
the $350.00 district court filing fee is to proceed as authorized by
28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s motion for leave to file
a first amended complaint (Doc. 4) is granted, and that the first
amended complaint is dismissed pursuant to 28 U.S.C. § 1915A(b) and
28 U.S.C. § 1915(e)(2)(B).
A copy of this order shall be mailed to plaintiff and to the
Centralized Inmate Banking office for the Kansas Department of
Corrections.
IT IS SO ORDERED.
DATED:

This 3rd day of April 2013 at Topeka, Kansas.

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