Dudley (91359) v. Butler County District Attorney's Office et al

Filing 53

ORDER ENTERED: The court directs that plaintiff's remaining claims for damages be dismissed and that this case be closed. Signed by U.S. District Senior Judge Sam A. Crow on 08/23/19. Mailed to pro se party James Richard Dudley by regular mail. (smnd)

3210IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES RICHARD DUDLEY,
Plaintiff,
vs.

Case No. 14-3210-SAC

BUTLER COUNTY DISTRICT ATTORNEY’S
OFFICE AND ASSISTANT DISTRICT
ATTORNEY JOSEPH M. PENNEY,
Defendants.

O R D E R
This case was removed to this court from the state district
court of Butler County, Kansas.

Doc. No. 1.

Plaintiff has raised

claims under 42 U.S.C. § 1983 and the Kansas Tort Claims Act.
Doc. No. 1-2.
state

court

See

Plaintiff alleges that he has been prosecuted in
in

retaliation

for

plaintiff’s

constitutionally

protected conduct and that plaintiff was not given proper notice
of

the

charges

against

him.

Previously,

the

court

stayed

proceedings as to plaintiff’s claims for damages pursuant to the
Younger doctrine while the state prosecution went forward.
court dismissed plaintiff’s claims for injunctive relief.

The
After

learning that the state appellate proceedings related to the
prosecution had concluded, the court lifted the stay recently and
asked

plaintiff

to

address

prosecutorial

entity issues by August 16, 2019.

1

immunity

Doc. No. 49.

and

suable

Plaintiff has failed to bring an argument as to why defendant
Penney is not immune from a § 1983 damages claim under the doctrine
of prosecutorial immunity. Nor has plaintiff shown that the Butler
County District Attorney’s Office is a suable entity.
“[P]rosecutors are absolutely immune from liability under [42
U.S.C. § 1983] for their conduct in ‘initiating a prosecution and
in presenting the State’s case,’ insofar as that conduct is
‘intimately associated with the judicial phase of the criminal
process.’”

Burns v. Reed, 500 U.S. 478, 486 (1991)(quoting Imbler

v. Pachtman, 424 U.S. 409, 430-31 (1976)).

This immunity has been

applied in cases alleging the initiation of judicial action in
retaliation for activity protected by the First Amendment.
Benavidez

v.

Howard,

2019

WL

3519156

*4

(10th

See
Cir.

8/2/2019)(dismissing claim that motion for protective order was
filed to chill First Amendment rights); Nielander v. Board of
County Com’rs, 582 F.3d 1155, 1164 (10th Cir. 2009)(dismissing §
1983 claim alleging First Amendment retaliation against prosecutor
who brought criminal threat charge).

Defendant Penney is also

entitled to dismissal of any claim under the Kansas Tort Claims
Act because of the discretionary immunity provisions of K.S.A. 756104(e).1

See Moral v. Telegram Pub. Co., Inc., 2013 WL 3970173

1

Under K.S.A. 75-6104(e), a state governmental employee is not liable for
damages resulting from “any claim based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the
part of a governmental entity or employee, whether or not the discretion is
abused and regardless of the level of discretion involved.”

2

*5-6 (Kan.App. 8/2/2013); Schmeidler v. Drees, 2003 WL 21948155 *8
(Kan.App. 8/8/2003).

The court determines that plaintiff has not

alleged a plausible claim against defendant Penney because he is
entitled to immunity under the facts plaintiff asserts.
The court further determines that plaintiff may not bring an
action against the “Butler County District Attorney’s Office”
because it is a governmental sub-unit and not a separate suable
entity.

See Goings v. Sumner County District Attorney’s Office,

2013 WL 6440267 *2 (D.Kan. 12/9/2013)(dismissing claim against
Sumner County District Attorney’s Office). As explained in Goings,
supra:
Under Kansas law, absent a specific statute, subordinate
governmental agencies do not have the capacity to sue or
be sued. Mason v. Twenty–Sixth Judicial District, 670
F.Supp. 1528, 1555 (D.Kan. 1987); Hopkins v. State, 237
Kan. 601, 702 P.2d 311, 316 (1985). Actions against
Kansas district attorney's offices and county attorney's
offices have routinely been dismissed because they are
not entities capable of being sued.
For

the

above-stated

reasons,

the

court

directs

that

plaintiff’s remaining claims for damages be dismissed and that
this case be closed.
IT IS SO ORDERED.
Dated this 23rd day of August, 2019, at Topeka, Kansas.

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

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