Guerra (ID 98705) v. Mott

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee requirements by either paying the appropriate fee in full or submitting a properly completed and supported motion for leave to proceed without pre payment of fees on court-provided forms. Within the same thirty-day period, plaintiff is required to show cause why his claim of illegal confinement and his requests for immediate release and a clear record should not be construed as habeas corpus c laims and dismissed for failure to state a claim under 1983 and for failure to exhaust state remedies, and unless he voluntarily dismisses his claim for money damages, he must also show cause why this claim should not be dismissed for the reasons stated herein. Signed by Senior District Judge Sam A. Crow on 8/14/2013. (Mailed to pro se party Thomas M. Guerra by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THOMAS M. GUERRA,
Plaintiff,
v.

CASE NO.

13-3119-SAC

WILLIAM R. MOTT, Judge,
Defendant.
MEMORANDUM AND ORDER
This pro se action was filed as a civil rights complaint pursuant
to 42 U.S.C. § 1983 by an inmate of the Larned Correctional Mental
Health Facility, Larned, Kansas.

Plaintiff sues the district court

judge that presided over three of his state criminal trials, claiming
that the judge admitted being racist and acted with bias against
plaintiff because plaintiff has a “mexican last name.”

Mr. Guerra

is required to satisfy the filing fee prerequisite and to show cause
why this action should not be dismissed because his claims of judicial
bias are habeas in nature and the only named defendant is immune to
suit for money damages.

FACTUAL BACKGROUND AND CLAIMS
As the factual background for his complaint, Mr. Guerra alleges
as follows.

On November 18, 2009,1 in Sumner County District Court

1
The records of Kansas Department of Corrections’ offenders available on-line
(KASPER) indicate that plaintiff was convicted in Sumner County on November 18,

1

he was sentenced to prison by defendant Judge Mott on two charges:
attempted solicitation of a minor and rape.
falsified.

The charges were

He “was found not guilty by the grand jury.”

Judge Mott

stated on the record that he was not going to accept the grand jury’s
verdict and sentenced Guerra to 161 months in prison.

On October

20, 2011, plaintiff was sentenced by Judge Mott for battery on law
enforcement officers in what “was actually a self defense case”
because

the

five

deputies

involved

were

punching,

kicking,

pistol-whipping and tasing him and he fought back in fear for his
life.

He was again found not guilty by the grand jury, but Judge

Mott refused to accept the verdict and sentenced him to 162 months
in prison.

At both trials, Judge Mott stated on the record that

“(M)exicans (sic) or anyone not (M)exican but has a (M)exican last
name is a disgrace to the human race.”

At the later trial, Judge

Mott admitted, upon being questioned by plaintiff, that he had
sentenced another man found guilty of raping his two-year old
daughter to probation because he was white.
Plaintiff asserts that he has been “unlawfully held in prison”
due to a racist judge.

He seeks release from prison, to have his

record cleared, and reimbursement for the past 3 years of his “SSI
which comes to a total of $25,000.00.”

In an attachment, plaintiff

2010, (rather than 2009) of attempted “sexual exploitation child” and rape; and
on August 10, 2012, in Leavenworth (not Sumner) County of attempted “battery state
corrections officer or employee.” The court notes that Judge Mott is currently
a judge in Sumner County District Court, Wellington, Kansas.

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asks the court to “grant (him) a $500.00 bond amount”2 and to clear
his record as well as grant him release within a few days because
his mother is on life support and wishes to see him before she is
taken off.

FILING FEE
Unfortunately for Mr. Guerra, he is in prison after having been
convicted of criminal offenses in two different trials, and those
convictions remain valid until proven otherwise.

He has not

presented facts or authority that would entitle him to preliminary
relief.

Nor

has

he

satisfied

the

basic

prerequisites

consideration of his claims, such as the filing fee.

for

The fee for

filing a civil complaint is $400.00, which includes the statutory
fee of $350.00 and an administrative fee of $50.00.

Or for one

granted leave to proceed in forma pauperis, the fee is $350.00.
Plaintiff has neither paid the fee nor submitted a Motion to Proceed
without Prepayment of Fees.

This action may not proceed until the

filing fee is satisfied in one of these two ways.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit a motion that contains an
affidavit described in subsection (a)(1), together with a “certified
copy

of

the

trust

fund

account

statement

(or

institutional

2
Plaintiff presents no authority for this court to set bond for him in a civil
rights action and no factual basis for granting him release on bond, if that is
what he is seeking. The court denies the request for setting of bond.

3

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.”
28 U.S.C. § 1915(a)(2).

Local court rule requires that this motion

be submitted upon court-approved forms.

The clerk shall be directed

to send plaintiff forms for filing a proper motion under § 1915(a).
Plaintiff is reminded that under 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 amount of the filing fee.
Instead, it entitles him to pay the fee over time through payments
automatically deducted from his inmate account as funds become
available pursuant to 28 U.S.C. § 1915(b)(2).3

If Mr. Guerra does

not satisfy the filing fee within the time prescribed herein, this
action may be dismissed without prejudice and without further notice.

SCREENING
Because Mr. Guerra 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 upon which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

3

and

(b);

28

U.S.C.

§

Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined will be directed to collect twenty percent (20%) of the prior
month’s income each time the amount in plaintiff’s institution account exceeds
ten dollars ($10.00) until the filing fee has been paid in full.

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1915(e)(2)(B).

A court liberally construes a pro se complaint and

applies “less stringent standards than formal pleadings drafted by
lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

However, 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).

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 complaint must offer “more than labels and

conclusions, and a formulaic recitation of the elements of a cause
of action.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

To avoid dismissal, the complaint’s “factual allegations

must be enough to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

Put another way, there must be

“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

DISCUSSION
The court finds that this action is subject to being dismissed
under 28 U.S.C. § 1915A(a), (b) and 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim and because judges are absolutely immune
to suit for money damages.

In essence, plaintiff is requesting that

this court overturn his state convictions and sentences and order
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his immediate release from prison.

However, release from custody

is not properly sought in a § 1983 civil rights action filed against
the state court judge that presided over criminal proceedings.
Reed v. McKune, 298 F.3d 946, 953 (10th Cir. 2002).

See

Instead, a

petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
is a state prisoner’s sole remedy in federal court for a claim of
entitlement to release.4

Preiser v. Rodriguez, 411 U.S. 475, 499

(1973); McIntosh v. United States Parole Commission, 115 F.3d 809,
811 (10th Cir. 1997); see Boutwell v. Keating, 399 F.3d 1203, 1209
(10th Cir. 2005)(“Habeas corpus is the only avenue for a challenge
to the fact or duration of confinement, at least when the remedy
requested would result in the prisoner’s immediate or speedier
release.”).

Furthermore, 28 U.S.C. § 2254(b)(1) provides:

An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that B- (A)
the applicant has exhausted the remedies available in the
courts of the State. . . .
Generally, the exhaustion prerequisite is not satisfied unless all
claims asserted have been presented by “invoking one complete round
of the State’s established appellate review process.”
4

O’Sullivan

The fee for filing a habeas corpus petition is $5.00 as compared to $350.00
or $400.00 for a civil rights complaint. If plaintiff acknowledges that his claims
are habeas in nature and that he has not exhausted, he may ask the court to construe
this action as a habeas petition and dismiss it without prejudice so that he may
exhaust the remedies available in state court. Then, he will be liable for a $5.00
filing fee only. After he has exhausted, he may then file another § 2254 petition,
which must be filed upon court-approved forms available upon request from the
clerk. However, in order to be liable for the $5.00 filing fee, plaintiff must
voluntarily dismiss his claim for money damages since damages are not an available
remedy in habeas corpus.

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v. Boerckel, 526 U.S. 838, 845 (1999).

This means plaintiff’s claims

must have been “properly presented” as federal constitutional issues
“to the highest state court, either by direct review of the conviction
or

in

a

post-conviction

attack.”

Dever

v.

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).

Kansas

State

Mr. Guerra states

only that he has “filed in the Sumner County District Court to have
new trials with a different Judge but they keep getting denied” by
Judge Mott.

These allegations indicate that he has not presented

his claims of judicial bias to the Kansas Court of Appeals and to
the highest state court, which is the Kansas Supreme Court.
Plaintiff is given time to show cause why his claim of illegal
confinement and his requests for immediate release and a clear record
should not be construed as habeas corpus claims and dismissed for
failure to state a claim under § 1983 and for failure to exhaust state
remedies.
If plaintiff persists in pursuing his claim for money damages
herein, he must also show cause why his claim in the amount of $25,000
against defendant Judge Mott should not be dismissed based upon
judicial immunity.

A state judge is absolutely immune from § 1983

liability except when the judge acts “in the clear absence of all
jurisdiction.”

Stump

v.

Sparkman,

435

U.S.

349,

356–57

(1978)(articulating broad immunity rule that a “judge will not be
deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority. . . .”).
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If

plaintiff fails to show good cause within the time allotted and this
action continues as a civil rights action, the complaint will be
dismissed without further notice and will count as a strike against
Mr. Guerra pursuant to 28 U.S.C. § 1915(g).5
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee requirement by either paying
the appropriate fee in full or submitting a properly completed and
supported motion for leave to proceed without prepayment of fees on
court-provided forms.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to show cause why his claim of illegal
confinement and his requests for immediate release and a clear record
should not be construed as habeas corpus claims and dismissed for
failure to state a claim under § 1983 and for failure to exhaust state
remedies, and unless he voluntarily dismisses his claim for money
damages, he must also show cause why this claim should not be
dismissed for the reasons stated herein.
The clerk is directed to send ifp and § 2254 forms to Mr. Guerra.

5

Section 1915(g) of 28 U.S.C. provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court that is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.

Id. A lawsuit against a state judge for damages based upon actions taken in the
course of presiding over a criminal trial qualifies as a strike.

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IT IS SO ORDERED.
Dated this 14th day of August, 2013, at Topeka, Kansas.

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

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