Booker v. Kansas, State of

Filing 2

ORDER ENTERED: Plaintiff is granted twenty (20) days to EITHER pay the district court filing fee required by 28 U.S.C. 1914, OR to submit an executed form motion for seeking leave to proceed in forma pauperis under 28 U.S.C. 1915. Plaintiff is gran ted twenty (20) days to file an objection to the court's construction of this matter as a petition for habeas corpus under 28 U.S.C. 2241, and to the summary dismissal of this action without prejudice. Signed by Senior District Judge Sam A. Crow on 5/15/2013. (Mailed to pro se party Robert H. Booker, III by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT H. BOOKER, III,
Plaintiff,
v.

CASE NO. 13-3055-SAC

STATE OF KANSAS,
Defendant.

O R D E R
This matter comes before the court on a pro se pleading titled
as a PETITION FOR REVIEW BY U.S. MAGISTRATE, filed pro se by a prisoner
confined in the Sedgwick County Adult Detention Center in Wichita,
Kansas.

Also before the court is plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915.
Plaintiff alleges constitutional violations of Kansas statutes
and his federal constitutional rights in the criminal proceeding
pending against him in the Sedgwick County District Court.
of Kansas is named as the sole defendant.

The State

Plaintiff seeks federal

review of that ongoing state court proceeding, and this court’s
intervention to protect his constitutional right to a fundamentally
fair and speedy trial.
Filing Fee Requirement, 28 U.S.C. § 1914 OR 28 U.S.C. § 1915
To proceed in federal court, plaintiff must either pay the
district court filing fee required by 28 U.S.C. § 1914(a), or must
seek and be granted leave to proceed in forma pauperis under 28 U.S.C.
§ 1915 without prepayment of the district court filing fee.

The

record discloses that plaintiff has submitted neither the statutory

filing fee nor a motion for in forma pauperis status.
plaintiff

a

limited

requirements.

time

to

satisfy

one

of

The court grants
these

statutory

The failure to do so in a timely manner may result in

the complaint being dismissed for failure to prosecute, and without
further prior notice.
Screening of the Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner, the court must screen his
complaint and must dismiss it, or any portion of it, that is frivolous
or malicious, that fails to state a claim upon which relief may be
granted, or that seek monetary damages from a defendant who is immune
from

such

relief.

28

U.S.C.

§

1915A(a)-(b);

28

U.S.C.

§

1915(e)(2)(B).
The court must give plaintiff’s pro se pleading a liberal
construction and must apply “less stringent standards than formal
pleadings drafted by lawyers.”
(2007).

Erikson v. Pardus, 551 U.S. 89,.94

However, plaintiff may not rely upon conclusory allegations,

and his “factual allegations must be enough to raise a right to relief
about the speculative level.”

Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)(internal citation omitted).
Having reviewed plaintiff’s pro se petition, the court finds
plaintiff’s citation to 28 U.S.C. § 636 is insufficient to establish
this court’s jurisdiction.

Plaintiff is presently subject to the

jurisdiction of the state district court in a state criminal
proceeding.

To the extent plaintiff seeks relief in federal court

on allegations of constitutional error in a pending state criminal
proceeding, plaintiff must proceed in habeas corpus under 28 U.S.C.
§ 2241 after first exhausting available state court remedies.

See

Walck v. Edmondson, 472 F.3d 1227 (10th Cir.2007)(§ 2241 is proper

avenue for challenging pretrial detention); Capps v. Sullivan, 13 F.3d
350, 354 n. 2 (10th Cir.1993)(pretrial habeas petitioner alleging a
violation of his speedy trial rights must first satisfy the exhaustion
requirement applicable to actions brought pursuant to 28 U.S.C. §
2241).

Accordingly, the court finds this action is subject to being

liberally construed as seeking federal habeas corpus relief.1
Because it plainly appears on the face of the record that
plaintiff has not used available state court remedies to resolve his
claims of error in the criminal proceedings against him, the court
finds a habeas action is premature and subject to being summarily
dismissed without prejudice.
Additionally, dismissal of this action without prejudice is
warranted under the abstention doctrine in Younger v. Harris, 401 U.S.
37 (1971), wherein the Supreme Court held that federal courts should
generally avoid interference with state criminal prosecutions which
were begun before initiation of the federal suit.

Id. at 43.

The

Younger abstention doctrine is based on "notions of comity and
federalism, which require that federal courts respect state functions
and the independent operation of state legal systems."
Hamilton, 122 F.3d 885, 889 (10th Cir.1997).

Phelps v.

While narrow exceptions

exist for unusual circumstances involving irreparable injury, with
an accompanying demonstration of bad faith or harassment or other
unusual circumstances, see Younger, 401 U.S. at 53-54, the court finds
abstention would be appropriate in this case where plaintiff’s state
criminal proceeding is ongoing, the state has a legitimate and
important interest in prosecuting criminal charges, and the state
1

Plaintiff is advised that the district court filing fee for a habeas corpus
action is $5.00, rather than the $350.00 district court filing fee required for a
non-habeas civil action.

courts afford an adequate forum to address plaintiff’s federal
constitutional challenges.
The court thus directs plaintiff to show cause why this action
should not be liberally construed as sounding in habeas corpus, and
summarily dismissed without prejudice.

The failure to file a timely

objection may result in the complaint being dismissed without
prejudice for the reasons stated herein, and without further prior
notice.
IT IS THEREFORE ORDERED that plaintiff is granted twenty (20)
days to EITHER pay the district court filing fee required by 28 U.S.C.
§ 1914, OR to submit an executed form motion for seeking leave to
proceed in forma pauperis under 28 U.S.C. § 1915.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days
to file any objection to the court’s construction of this matter as
a petition for habeas corpus under 28 U.S.C. § 2241, and to the summary
dismissal of this action without prejudice.
The clerk’s office is to provide plaintiff with a form motion
for filing under 28 U.S.C. § 1915.
IT IS SO ORDERED.
DATED:

This 15th day of May 2013 at Topeka, Kansas.

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