Hamby v. Wilbert et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is denied; plaintiff is granted thirty (30) days in which to submit the $400.00 filing fee; and plaintiff's failure to pay the full filing fee within that time will result in dismissal of this action without prejudice. Signed by Senior District Judge Sam A. Crow on 8/14/2013. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JIMMY E. HAMBY,
Plaintiff,
v.

CASE NO.

13-3125-SAC

WARREN M. WILBERT,
et al.,
Defendants.
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 in Wichita, Kansas.
Mr. Hamby names as defendants three Segdwick County District Court
judges that have apparently issued rulings in criminal cases pending
against him, a deputy clerk of the Sedgwick County District Court,
and his court-appointed defense attorney.

Having examined the

materials filed by plaintiff and his litigation history, the court
designates Mr. Hamby as a three-strikes litigant.

Accordingly, he

is required to pay the filing fee in full in order to proceed with
this lawsuit.

FILING FEE
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,

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or for one granted leave to proceed in forma pauperis it is $350.00.
This action may not proceed until the filing fee is satisfied.
Plaintiff has submitted an incomplete Motion to Proceed without
Prepayment of Fees (Docs. 2, 3).

28 U.S.C. § 1915 requires that a

prisoner seeking to bring an action without prepayment submit a
motion that contains an affidavit described in subsection (a)(1),
which plaintiff has done.

However, the prisoner is also required

to provide 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.”

28 U.S.C. § 1915(a)(2).

Plaintiff has not provided a

certified statement of his inmate account as required by federal law.
Moreover,
litigant.

it

appears

that

plaintiff

is

a

three-strikes

It follows that plaintiff’s Motion to Proceed Without

Prepayment of Fees must be denied unless he shows that he is in
imminent danger of serious physical injury.

The motion contains no

allegation of impending serious physical injury.

ALLEGATIONS AND CLAIMS
As Count I of his complaint, Mr. Hamby claims that defendant
judges and his counsel violated his “right to be present during any
and all proceedings” in his criminal case.

As factual support, he

alleges that in April and May of 2013, his preliminary hearing was
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continued three times by defendants Judge Wilbert and Judge Burgess
without Hamby’s approval and with only his attorney present.

He

asserts that his constitutional rights to due process and equal
protection under the Fifth and Fourteenth Amendments were violated
as a result.

As Count II, plaintiff claims that his court-appointed

defense counsel is providing ineffective assistance in violation of
the Sixth Amendment.

As factual support for this count, he alleges

that defendant Hansen did not allow him to be present at the hearings
and refuses to represent him on pro se motions that Hamby has filed
in his criminal case.

As Count III, plaintiff complains that

defendant Judge Walters has held his “motion for judicial notice
envoking (sic) petitioners right to be provided with a 90 day speedy
trial” in limbo, and informed plaintiff that motions are to be filed
by his attorney.
appropriate

Plaintiff claims he sought relief from the

administrative

officials

by

sending

a

letter

of

complaint to the Chief Justice James Fleetwood but received no
response.

Plaintiff also sues defendant “Deputy Clerk #5” and in

support of this claim alleges that on July 5, 2013, he mailed two
motions to the clerk for filing in his criminal case and without his
permission the clerk marked out contents before filing.

He asserts

that this violated his rights to due process and equal protection
under the Fifth and Fourteenth Amendments.

Plaintiff seeks relief

in the form of compensatory and punitive damages from each defendant.

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THREE STRIKES DESIGNATION
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.

The court takes judicial notice of the records of prior cases

filed by Mr. Hamby in this district and finds that he has filed at
least three previous IFP cases while incarcerated that were dismissed
as frivolous or for failure to state a claim.

Accordingly, the court

concludes that plaintiff is a three-strikes litigant under 28 U.S.C.
§ 1915(g).

The cases on which the designation is based are as

follows.
In Hamby v. Sanders, No. 90-3456-DES (D.Kan. Jan. 6, 1993),
plaintiff claimed a denial of access to the court based upon
allegations of restrictions to legal materials.

He also claimed

that disciplinary action taken against him amounted to cruel and
unusual punishment.
granted.

Defendants filed a motion to dismiss that was

The court found that Mr. Hamby was not entitled to relief

on his access claim because he failed to allege actual injury. 1

1

To state a claim for relief arising out of an alleged denial of access to
the courts, a prisoner must allege actual injury and demonstrate that his efforts
to pursue a legal claim were actually prejudiced in some respect. See Lewis v.
Casey, 518 U.S. 343, 351 (1996); Peterson v. Shanks, 149 F.3d 1140, 1145 (10th
Cir. 1998)(To present a viable claim for denial of access to the courts, . . .
an inmate must allege and prove prejudice arising from the defendants’ actions.”);

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With respect to Hamby’s claims regarding the disciplinary
proceedings, the court found they were “only bare claims” that were
not supported by the facts before the court.
F.3d 1106, 1109–10 (10th Cir.

Hall v. Bellmon, 935

1991)(“[C]onclusory

allegations

without supporting factual averments are insufficient to state a
claim upon which relief can be based.”); see Hafed v. Federal Bureau
of Prisons, 635 F.3d 1172, 1178 (10th Cir. 2011)(where plaintiff
asserted facts showing he had no legally viable claim dismissal
counted as a strike).

The court finds that this dismissal was for

failure to state a claim and thus qualifies as a prior occasion.
In Hamby v. Davies, No. 90-3503-DES (D.Kan. Jan. 28, 1993), Mr.
Hamby brought a § 1983 complaint alleging that defendants had
illegally enhanced his sentence by forfeiting his good time in three
disciplinary proceedings.

He did not challenge the disciplinary

proceedings but sought damages and injunctive relief based on a broad
claim that the state law sanctions violated the ex post facto clause.
The court dismissed the action without prejudice finding that the
claims challenged the length of his confinement and could only be
brought in a habeas petition.

See Smith v. Veterans Admin., 636 F.3d

Walker v. Wilkerson, 310 Fed.Appx. 284 (10th Cir. 2009)(unpublished)(agreeing with
district court’s dismissal of complaint alleging denial of access for failure to
state a claim where plaintiff failed to allege prejudice, dismissing appeal as
frivolous and counting both district court and appeal dismissals as strikes);
Pemberton
v.
Jones,
2011
WL
1595158,
*13
(W.D.
Okla.
Jan.
24,
2011)(unpublished)(Where plaintiff “failed to demonstrate any injury resulting
from the perceived denial of access to the courts,” his claims were “dismissed
without prejudice for failure to state a claim.”); Estes v. Fortunato, 2011 WL
4369124, *11 (D.Colo. Aug. 9, 2011)(unpublished)(Claim of denial of access to the
courts that does not adequately allege any actual injury dismissed for failure
to state a claim).

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1306, 1312 (10th Cir. 2011)(Plaintiff’s “claims under 42 U.S.C. § 1983
necessarily implied the invalidity of his conviction,” and “his civil
rights case [wa]s presently barred by Heck v. Humphrey” and properly
counted as a strike.); Davis v. Kan. Dep’t of Corr, 507 F.3d 1246,
1248, 1249 (10th Cir. 2007).

The court finds that this action

qualifies as a prior occasion.
In Hamby v. Ross, No. 95-3046-RDR (D.Kan. May 4, 1995), Mr. Hamby
filed a § 1983 complaint in which he sought money damages based on
the claim of constitutional violations in his state parole revocation
and review.

The court found that to the extent plaintiff sought to

overturn the challenged proceedings and obtain new parole hearings,
he sought relief in the nature of habeas corpus and was required to
proceed by habeas corpus petition after exhausting state court
remedies.

The court further found that to the extent plaintiff

sought damages for the alleged violation of his constitutional rights
in the state parole proceedings, his claim was not yet ripe and was
barred by Heck v. Humphrey, 512 U.S. 477 (1994).
that this dismissal qualifies as a prior occasion.

The court finds
See Smith, 636

F.3d at 1312; Davis, 507 F.3d 1246 at 1249; Thomas v. Parker, 672
F.3d 1182, 1184 (10th Cir. 2012)(“the congressional purpose of §
1915(g) would be subverted if, by adding unexhausted claims to a
complaint that otherwise does not state a claim . . . a prisoner could
repeatedly escape imposition of a strike.”).
Based upon the discussed cases, the court finds that Mr. Hamby
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has on 3 prior occasions while incarcerated brought a court action
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted.

Accordingly, the court designates Mr. Hamby

as a three-strikes litigant.

There is no indication in the instant

complaint or in plaintiff’s Motion for Leave to Proceed without fees
that his claims involve imminent danger of serious physical injury.
It follows that Mr. Hamby cannot proceed with this lawsuit unless
he prepays the fees of $400.00.

COMPLAINT SUBJECT TO DISMISSAL
Even if plaintiff were not a three-strikes litigant, this action
would be subject to dismissal under 28 U.S.C. § 1915A(a) and (b);
28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a
claim against defendants.

This court is required by statute to

screen a § 1983 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) and (b); 28 U.S.C. § 1915(e)(2)(B).

The court briefly notes that a judge presiding over state criminal
proceedings is absolutely immune to suit for money damages based upon
acts taken during those proceedings, and that court personnel are
generally

entitled

to

immunity

as

well.

Furthermore,

a

court-appointed defense attorney does not act “under color of state
law.”
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Mr. Hamby is reminded that any challenges he may have to his
state criminal proceedings, such as ineffective assistance of
counsel or denial of speedy trial, must be properly presented in the
first instance to the trial court and eventually throughout the state
appellate process before they may be raised in federal court.

This

court has no authority to intervene in pending state criminal
proceedings.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion
for Leave to Proceed in forma pauperis (Doc. 2) is denied; plaintiff
is granted thirty (30) days in which to submit the $400.00 filing
fee; and plaintiff’s failure to pay the full filing fee within that
time will result in dismissal of this action without prejudice.
IT IS SO ORDERED.
Dated this 14th day of August of 2013, at Topeka, Kansas.

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

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