Elmer v. Vratil et al
Filing
23
MEMORANDUM AND ORDER granting 16 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by District Judge Richard D. Rogers on 5/4/2015. Mailed to pro se party Norman Edward Elmer by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NORMAN EDWARD ELMER,
Plaintiff,
v.
Case No. 14-4123-RDR
KATHRYN H. VRATIL;
ERIC H. HOLDER JR.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, proceeding pro se, brings this action against
Kathryn H. Vratil, United States District Judge for the District of
Kansas; and Eric H. Holder, Attorney General for the United States.1
Plaintiff asserts constitutional torts against the defendants
regarding his conviction, sentence and incarceration arising from
a 2009 conviction for failure to register as a sex offender in
violation of 18 U.S.C. ' 2250.
This matter is presently before the
court upon defendants= motion to dismiss.
I.
In 2008, plaintiff entered a guilty plea to violating ' 2250.
He was sentenced on March 12, 2009 to a term of incarceration of 18
months and 5 years of supervised release.
1
At the time plaintiff filed this action, Eric Holder was the Attorney General.
been sworn in as the Attorney General of the United States.
1
He filed the instant
Since that time, Loretta E. Lynch has
action on December 3, 2014.
In his complaint, he raises claims
against AG Holder and Judge Vratil.
His claims against AG Holder
arise from his prosecution and conviction under ' 2250.
He alleges
that his prior sex offender offense occurred in 1981 before the
passage of the Sex Offender and Registration and Notification Act
(SORNA), 18 U.S.C. ' 2250.
Based upon the Supreme Court=s decision
on January 23, 2012, in Reynolds v. United States, 132 S.Ct. 975
(2012)(SORNA=s
registration
requirements
do
not
apply
to
sex
offenders convicted before the Act became law until the United States
Attorney General so specifies), he contends that he was unlawfully
convicted through representations made by Assistant United States
Attorney Kim I. Martin.
His claims against Judge Vratil also arise from his conviction
in
her
court.
He
alleges
that,
while
serving
his
term
of
incarceration for the ' 2250 conviction, inmates at his institution
learned of an order issued by Judge Vratil in which she denied a motion
to dismiss he had filed.
In that order, Judge Vratil identified his
prior sex offender offense to be against an underage girl.
He
contends that inmates severely beat and injured him after they
learned of the contents of that order.
He also indicates that he
sought relief from his conviction based upon Reynolds in Judge
Vratil=s court, but she denied him relief.
For the alleged injuries
inmates caused by the inmates, and for his conviction and sentence,
2
plaintiff seeks damages from Judge Vratil and AG Holder in the amount
of $2,658,920.00.
II.
In their motion, defendants contend that plaintiff=s claims must
be dismissed for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted.
They begin by
suggesting that plaintiff=s claims are barred by Heck v. Humphrey,
512
U.S.
477
(1994).
Defendant
Vratil
further
argues
that
plaintiff=s claims against her are barred by sovereign immunity or
absolute judicial immunity.
Defendant Holder contends plaintiff=s
claims against him are barred by sovereign immunity, legislative
immunity, prosecutorial immunity or qualified immunity.
In the
alternative, he suggests that they fail to state a claim upon which
relief can be granted.
Following the filing of the defendants= motion, plaintiff filed
a two-page response in which he (1) asked the court to look over the
case which led to his conviction under ' 2250, United States v. Elmer,
No. 08-20033-01-KHV; (2) thought he only had to register as a sex
offender for three years when he was released from prison in 1991
for his prior sex offender offense; and (3) indicated he did not care
about receiving any money for his claims, but only wished to clear
up his registration requirements so he can go back to his home and
family in New York.
3
III.
A pro se complaint is held to a less stringent standard then
other
complaints,
procedural rules.
but
all
parties
must
adhere
to
applicable
See Kay v. Bemis, 500 F.3d 1214, 1218 (10th
Cir.
2007). Under such rules, the plaintiff must state a claim upon which
relief may be granted, i.e., the complaint must contain Aa short and
plain statement of the claim showing that the pleader is entitled
to relief.@ Fed.R.Civ.P. 8(a)(2). The court reviewing the sufficiency
of a complaint Awill 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, 1175 (10th
Cir. 1997). In addition, a pro se plaintiff bears the burden of
establishing that the court has subject matter jurisdiction.
Based upon plaintiff=s recent response, the court must conclude
that he has either abandoned his claims for damages against the
defendants or tacitly conceded that this court lacks jurisdiction
to award the damages he sought in his complaint.
In either case,
plaintiff has presented no argument that the court has jurisdiction
to award damages against a federal judge or the Attorney General of
the United States based upon the claims he has alleged.
In reaching this conclusion, the court has also considered the
legal arguments offered by plaintiff in his complaint.
Contrary to
argument offered by plaintiff, there is little question here that
4
most of plaintiff=s claims are barred by Heck v. Humphrey, 512 U.S.
477 (1994).
In Heck, the Supreme Court held that when a prisoner
seeks damages in a suit filed pursuant to 42 U.S.C. ' 1983, Athe
district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already
been invalidated.@
See Heck, 512 U.S. at 487.
Even if plaintiff=s
analysis of Reynolds is correct, his 2009 conviction and sentence
has not been set aside by any court and the principles of Heck would
require the dismissal of this case.
plaintiff=s case before Judge Vratil.
The court did examine
Contrary to what plaintiff has
stated in his pleadings, he has not challenged his conviction and
sentence in that case.
He did seek the appointment of counsel to
file a motion under 28 U.S.C. ' 2255, but after that motion was denied,
he made no effort to challenge his conviction and sentence under '
2255.
To the extent that other claims are asserted by plaintiff,
they are barred by sovereign immunity, judicial immunity and
prosecutorial immunity.
As correctly pointed out by the defendants, this court lacks
authority to address plaintiff=s remaining request for relief, i.e.,
that his registration requirements under SORNA be Acleared up.@
This court has no authority to invalidate or reverse the decision
5
reached by Judge Vratil in his underlying criminal case.
His
challenge to his conviction and sentence must be brought in the
district court which presided over the criminal case.
United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
See Brace v.
In sum, the court
must dismiss this action for lack of subject matter jurisdiction.
IT IS THEREFORE ORDERED that defendants= motion to dismiss (Doc.
# 16) be hereby granted.
This action is dismissed for lack of subject
matter jurisdiction.
IT IS SO ORDERED.
Dated this 4th day of May, 2015, at Topeka, Kansas.
s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge
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