Mans v. Kansas, State of
Filing
2
MEMORANDUM AND ORDER ENTERED: Plaintiff Mans is given thirty (30) days in which to satisfy the filing fee by either paying the appropriate fee in full or submitting a properly-supported motion to proceed without prepayment of fees. Within the same thirty-day period, plaintiff Mans is required to show cause why this action should not be construed as a habeas petition and dismissed. Signed by Senior District Judge Sam A. Crow on 2/20/2013. (Mailed to pro se party Robert B. Mans by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT B. MANS,
Plaintiff,
v.
CASE NO.
13-3006-SAC
STATE OF KANSAS,
Defendant.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the Sedgwick County Jail (SGCJ) in Wichita,
Kansas.
The
initial
pleading
filed
herein
contains
several
conclusory statements including the bald allegation that plaintiff’s
trial attorney and the district attorney in his pending state
criminal case have “become a nuisance per se.”
The allegations in
the complaint that are factual amount to challenges to plaintiff’s
state criminal proceedings.
These include that his appointed
defense attorney has continued his trial without his consent and has
not responded or communicated with him for months, that there is
exculpatory evidence, and that he has filed pro se motions in the
criminal case, which have not been heard.
Plaintiff seeks damages
of $2000 per day “for the time he has illegally been incarcerated.”
Having
considered
the
pleading,
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the
court
finds
several
deficiencies.
Plaintiff is given the opportunity to cure those
deficiencies and warned that if he fails to do so within the time
allotted, this action may be dismissed without further notice.
FILING FEE
The statutory fee for filing a civil rights complaint in federal
court is $350.00, while the fee for a habeas corpus petition is $5.00.
Plaintiff has neither paid the fee nor submitted a motion to proceed
without prepayment of fees.
This action may not proceed until Mr.
Mans has satisfied the statutory filing fee in one of these two ways.
28 U.S.C. § 1915 requires a prisoner seeking to bring an action
without prepayment of fees to submit a motion together with an
affidavit described in subsection (a)(1), and a “certified copy of
the trust fund account statement (or institutional equivalent) for
the prisoner for the six-month period immediately preceding the
filing” of the action “obtained from the appropriate official of each
prison at which the prisoner is or was confined.”
1915(a)(2).
28 U.S.C. §
In civil rights proceedings, the court is also required
to assess an initial partial filing fee based upon the requisite
financial information where funds are available.
Plaintiff is reminded that, pursuant to 28 U.S.C. § 1915(b)(1),
being granted leave to proceed without prepayment of fees will not
relieve him of the obligation to pay the full district court filing
fee of $350.00 for a civil rights action.
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Such leave merely entitles
him to pay the filing fee over time through payments automatically
deducted from his inmate trust fund account as authorized by §
1915(b)(2).
Under the latter provision, the Finance Office of the
facility where plaintiff is confined will be directed to collect
twenty percent (20%) of the 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 forewarned that if he fails to satisfy the filing
fee prerequisite within the time prescribed by the court, this action
may be dismissed without prejudice and without further notice.
SCREENING
Because Mr. Mans is a prisoner, the court is required by statute
to screen his complaint and to dismiss the complaint or any portion
thereof that is frivolous, fails to state a claim on which relief
may be granted, or seeks relief from a defendant immune from such
relief.
28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person
acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48-49
(1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518,
1523 (10th Cir. 1992).
A court liberally construes a pro se complaint
and applies “less stringent standards than formal pleadings drafted
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by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The court
accepts all well-pleaded allegations in the complaint as true.
Anderson
v.
Blake,
469
F.3d
910,
913
(10th
Cir.
2006).
Nevertheless, a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon
which relief can be based.”
(10th Cir. 1991).
Hall v. Bellmon, 935 F.2d 1106, 1110
The court “will not supply additional factual
allegations to round out a plaintiff=s complaint or construct a legal
theory on a plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997).
Having screened all materials
filed, the court finds the complaint is subject to being dismissed
for the following reasons.
DISCUSSION
Mr. Mans cites 28 U.S.C. § 636 as legal authority for this
lawsuit but does not explain its import or for what purpose he seeks
to “make known to the United State Magistrate Judge that a civil
rights violation is now before the Court.”
the power and duties of federal magistrates.
Section 636 sets forth
Neither this statute
nor plaintiff’s notice confers jurisdiction upon this court or
provides plaintiff with any sort of basis for the relief sought in
this case.
The only named defendant is the State of Kansas, and the state
is absolutely immune to suit for money damages.
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Plaintiff’s fact allegations amount to challenges to his state
court criminal proceedings that are currently pending.
A state
inmate may not challenge the fact of his confinement or a state
criminal conviction in a civil rights complaint.
In order to pursue
a claim in federal court of illegal confinement by state authorities,
he must file a petition for writ of habeas corpus.
Rodriguez, 411 U.S. 475, 504 (1073).
See Preiser v.
In addition, a person seeking
to challenge state criminal proceedings or confinement by state
authorities is required to fully and properly exhaust the available
state court remedies on all such claims before he files a habeas
petition in federal court.
Mr. Mans must present all challenges to
his state criminal proceedings in the trial court and, if not
satisfied with the course or result of those proceedings, on direct
appeal in the state courts.
Furthermore, dismissal of this action
is warranted under the abstention doctrine in Younger v. Harris, 401
U.S. 37 (1971), wherein the Supreme Court held that federal courts
should avoid interference with state prosecutions that were pending
before initiation of the federal suit.
Id. at 43.
In sum, plaintiff’s conclusory statements present no grounds
for relief under § 1983, and his claims are habeas in nature and
premature.
He is required to show cause why this action should not
be construed as a habeas corpus petition and dismissed for failure
to exhaust and under the abstention doctrine.
IT IS THEREFORE BY THE COURT ORDERED that Mr. Mans is given
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thirty (30) days in which to satisfy the filing fee by either paying
the appropriate fee in full or submitting a properly-supported motion
to proceed without prepayment of fees.
IT IS FURTHER ORDERED that within the same thirty-day period,
Mr. Mans is required to show cause why this action should not be
construed as a habeas petition and dismissed for the reasons stated
herein.
The clerk is directed to send forms to Mr. Mans for filing an
IFP motion.
IT IS SO ORDERED.
Dated this 20th day of February, 2013, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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