Madkins v. Platt et al

Filing 8

ORDER ENTERED: Defendants Platt, Junction City Police Department and Riley County Police Department are dismissed from this case and plaintiff's claims for injunctive and declaratory relief are dismissed. Plaintiff's § 1983 and state law claims against defendants Opat and Virden in their official capacities and plaintiff's § 1983 and state law claims against defendant KBI are dismissed. The court shall dismiss defendant Schoen from this action unless plaintiff files a motion to amend the complaint within 30 days of this order. The Clerk shall issue waiver of summons forms and prepare summons consistent with Section VII of this order. Signed by U.S. Senior District Judge Sam A. Crow on 07/25/17. Mailed to pro se party Martye Madkins by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARTYE MADKINS,
Plaintiff,
vs.

Case No. 15-3101-SAC-DJW

DAVID L. PLATT, et al.,
Defendants.

O R D E R
This is a pro se action pursuant to 42 U.S.C. § 1983, the
civil damages provision of the Federal Wiretap Act, 18 U.S.C. §
2520 and Kansas law, K.S.A. 22-2518.

Plaintiff filed this case

as a prisoner while facing criminal charges, along with several
other defendants, in U.S. v. Banks, Case No. 13-40060 (“Banks”).
Plaintiff has been convicted in that case and his conviction is
now on appeal to the Tenth Circuit.
Plaintiff’s claims in his original complaint arise from one
or more wiretaps issued during the investigation leading to the
criminal charges in Banks.

Plaintiff alleges that on or about

March 5, 2013, defendant Glen Virden, a KBI agent, and defendant
Steven Opat, the Geary County District Attorney, applied for a
wiretap which was approved by defendant David R. Platt, Geary
County District Judge.

Plaintiff contends that defendant Platt

lacked the “territorial jurisdiction” to grant the warrant that

1

was

issued

because

it

permitted

the

interception

of

communications outside of Platt’s judicial district.
also

names

T-Mobile

USA,

Junction

City

Police

phone

Plaintiff

Chief

Timothy

Brown, Junction City Police Detective Alvin Babcock, and Riley
County

Police

Department

Director

Brad

Schoen

as

defendants.

The complaint indicates that all of the individual defendants
are being sued in their individual and official capacities.

The

caption of the complaint also lists the KBI, the Junction City
Police

Department

defendants.

and

the

Plaintiff

Riley

seeks

County

damages

Police

as

well

Department
as

as

unspecified

injunctive and declaratory relief.
I.

ORDER TO SHOW CAUSE
This case is now before the court upon a Notice and Order

to Show Cause (NOSC) entered by the undersigned judge.
3.

Doc. No.

Consistent with plaintiff’s allegations, the NOSC observed

that, in plaintiff’s criminal case, Judge Crabtree of this Court
held that wiretaps authorized by defendant Platt violated the
Kansas wiretap statute, K.S.A. 22-2514 et seq., to the extent
that

they

intercepted

territorial

jurisdiction

phone
of

communications

Judge

Platt’s

beyond

judicial

the

district.

Some recorded conversations were suppressed by Judge Crabtree,
while

those

jurisdiction

which
were

occurred
not

within

Judge

suppressed.

See

F.Supp.3d 1237 (D.Kan. 2015).

Platt’s
U.S.

v.

territorial
Banks,

93

Nevertheless, the NOSC suggested
2

that

plaintiff’s

complaint

was

deficient

in

part

because:

immunity doctrines barred plaintiff’s claims for damages against
defendants; personal participation was not adequately alleged as
to some defendants; illegal policies were not alleged to support
an official capacity claim; defendant T-Mobile was exempt from
liability because it was following a court order; and plaintiff
could

not

use

this

litigation

conviction) in his criminal case.

to

attack

rulings

(or

a

The court directed plaintiff

to show cause why this case should not be dismissed.
Plaintiff has responded to the NOSC with a Statement of
Facts (Doc. No. 4) and a Memorandum of Law (Doc. No. 4-1).
These pleadings, in addition to addressing plaintiff’s wiretap
claim,

attempt

to

add

a

claim

that

plaintiff

was

illegally

denied appointment of counsel by Judge Platt in state court.
The court reviews plaintiff’s response to the NOSC in light
of

the

court’s

obligation

to

screen

plaintiff’s

complaint

according to the standards reviewed at pp. 5-6 of the NOSC.
II. DEFENDANT PLATT IS ENTITLED TO ABSOLUTE IMMUNITY AGAINST
LIABILITY IN HIS INDIVIDUAL CAPACITY
Plaintiff
authorized
jurisdiction

a

seeks
wiretap

and

to
or

because

sue

defendant

wiretaps
he

refused

Platt

outside
to

his

appoint

because

he

territorial
counsel

for

plaintiff when criminal charges were initially brought in state

3

court.1 Obviously, these are actions Platt took in his judicial
capacity. “[A] state judge is absolutely immune from § 1983
liability except when the judge acts ‘in the clear absence of
all jurisdiction.’”
Cir.)

cert.

Hunt v. Bennett, 17 F.3d 1263, 1266 (10th

denied,

513

U.S.

832

(1994)(quoting

Sparkman, 435 U.S. 349, 356-57 (1978)).

Stump

v.

“A judge will not be

deprived of immunity because the action he took was in error,
was

done

maliciously,

Stump, 435 U.S. at 356.

or

was

in

excess

of

his

authority.”

Because “some of the most difficult and

embarrassing questions which a judicial officer is called upon
to consider and determine relate to his jurisdiction, the scope
of the judge’s jurisdiction must be construed broadly where the
issue is the immunity of the judge.”
quotation and citation omitted).

Id. at 356 (interior

To determine whether a judge

acted “in the clear absence of jurisdiction,” a court looks “to
the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectations of the
parties, i.e., whether they dealt with the judge in his judicial
capacity.”

Id. at 362.

1

Plaintiff’s statement of facts suggests the addition of a new claim by
making a bald accusation that Judge Platt violated the Interstate Agreement
on Detainers Act, 18 U.S.C. App. 2. Doc. No. 4, pp. 3-4. Plaintiff asserts
that this in turn violated his due process rights. Plaintiff, however, does
not allege sufficient facts to describe a legal or constitutional violation.
Plaintiff also does not show cause why defendant Platt would not be immune
from liability for a violation of the Agreement on Detainers Act.

4

Issuing a wiretap order and denying appointment of counsel
are clearly actions normally performed by a judge and Judge
Platt did not rule in absence of all jurisdiction when he made
the orders.

See Hicks v. Blythe, 1997 WL 8844 *2-3 (10th Cir.

1/9/1997)(finding

immunity

where

defendant

judge

allegedly

increased the amount of bail without the jurisdiction to do so);
Duty v. City of Springdale, Ark., 42 F.3d 460, 462-63 (8th Cir.
1994)(distinguishing

between

acts

performed

in

excess

of

jurisdiction and those done in the absence of all jurisdiction,
where municipal court judge allegedly lacked authority to issue
an

arrest

warrant).

Therefore,

Judge

Platt

immunity against plaintiff’s § 1983 claims.

is

entitled

to

The application of

judicial immunity applies as well to plaintiff’s claims under
the federal and state wiretap laws.

See Dahl v. Charles F.Dahl,

M.D., P.C. Defined Ben. Pension Trust, 744 F.3d 623, 630 (10th
Cir. 2014)(approving application of quasi-judicial immunity to
claims under wiretap law made against an guardian ad litem);
Babb

v.

Eagleton,

614

F.Supp.2d

1232,

1238-40

(N.D.Okla.

2008)(quasi-judicial immunity is a defense to liability under
federal wiretap law); see also Garner v. Wahl, 2005 WL 3098727
*6 (Kan. App. 11/18/2005)(applying judicial immunity to state
law claims against district court judge accused of illegally
impaneling a grand jury); see generally Merryfield v. State,

5

2017 WL 945755 *2 (Kan. App. 3/10/17)(“[j]udicial immunity is
long-established law in Kansas”).
III. PLAINTIFF’S STATE LAW CLAIMS AND § 1983 CLAIMS AGAINST
STATE AGENCIES OR STATE OFFICIALS IN THEIR OFFICIAL CAPACITY
SHALL BE DISMISSED ON ELEVENTH AMENDMENT IMMUNITY GROUNDS.
Defendants Platt, Opat and Virden are state officials for
purposes of Eleventh Amendment analysis.
and

§

1983

damages

claims

against

Therefore, state law

them

in

their

official

capacities are claims against the State of Kansas and barred by
the Eleventh Amendment.

See Raygor v. Regents of University of

Minnesota, 534 U.S. 533, 540-41 (2002)(state law claims against
nonconsenting state defendants in federal court are barred by
Eleventh Amendment); Will v. Michigan Dept. of State Police, 491
U.S.

58,

66

(1989)(Eleventh

Amendment

bars

§

1983

actions

against a State in federal court); Ellibee v. Fox, 244 Fed.Appx.
839,

843-44

(10th

Cir.

2007)(dismissing

§

1983

damages

claim

against a Geary County district judge in his official capacity);
Boxum-Debolt v. Office of Dist. Attorney, 2013 WL 5466915 *4
(D.Kan. 9/30/2013)(barring § 1983 claim against Shawnee District
Attorney in his official capacity); Kjorlie v. Lundin, 1991 WL
290452 (D.Kan. 12/11/1991)(barring § 1983 claim against a KBI
agent in his official capacity).

6

IV. DEFENDANT SCHOEN SHALL BE DISMISSED UNLESS PLAINTIFF AMENDS
HIS COMPLAINT WITHIN 30 DAYS
Plaintiff does not allege facts showing defendant Schoen’s
personal

participation

in

the

alleged

illegal

conduct.

Therefore, he shall be dismissed unless plaintiff’s moves to
amend the complaint within 30 days of the date of this order.
See Iqbal, 556 U.S. at 678 (a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face); Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008)(a § 1983 complaint must demonstrate
personal involvement on the part of each individual); Robbins v.
Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1250 (10th
Cir.2008)(where

a

plaintiff

names

several

individuals

as

defendants, the complaint must make clear exactly who is alleged
to have done what to whom, to provide each individual with fair
notice as to the basis of the claims against him or her).

Any

motion

the

to

amend

the

complaint

should

include

a

copy

of

proposed amended complaint which contains all of the claims upon
which plaintiff wishes to proceed.
V. THE JUNCTION CITY POLICE DEPARTMENT AND THE RILEY COUNTY
POLICE DEPARTMENT ARE NOT SUABLE ENTITIES
This court has held that governmental sub-units such as
sheriff’s departments and municipal police departments are not
suable entities.

Schwab v. Kansas, 2017 WL 2831508 *13 (D.Kan.

6/30/2017); Ward v. Lenexa, Kansas Police Dept., 2014 WL 1775612
7

*4 (D.Kan. 5/5/2014); Johnson v. Figgins, 2013 WL 1767798 *5
(D.Kan. 4/24/2013); Rivera v. Riley County Police Department,
2011 WL 4686554 *2 (D.Kan. 10/4/2011).

Therefore, plaintiff may

not proceed with an action against the Junction City Police
Department or the Riley County Police Department.
VI. PLAINTIFF’S CLAIMS
SHALL BE DISMISSED

FOR

INJUNCTIVE

AND

DECLARATORY

RELIEF

Plaintiff’s claims for injunctive relief are ill-defined.
Plaintiff does not describe an illegal action which may cause
imminent harm as required for a preliminary injunction.

See

Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.
2003)(a party seeking preliminary injunctive relief must show
the injury complained of is imminent).
irreparable
injunctive

harm
relief.

as

required
Id.;

for

Fisher

Nor does he describe

preliminary
v.

Oklahoma

or

permanent

Health

Care

Authority, 335 F.3d 1175, 1180 (10th Cir. 2003)(listing standards
for a permanent injunction).

Similarly, a declaratory judgment

ordinarily should not be granted unless the parties’ plans of
action are likely to be affected by the declaratory judgment.
Jordan v. Sosa, 654 F.3d 1012, 1030 (10th Cir. 2011)(citing and
quoting Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997)
and Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 412 (3d
Cir. 1992)); see also Barney v. Pulsipher, 143 F.3d 1299, 1306
n.3 (10th Cir. 1998)(a plaintiff cannot maintain a declaratory

8

judgment action unless he or she can establish a good chance of
being

likewise

injured

in

the

future).

Plaintiff

does

not

allege facts which support a declaratory judgment claim.
VII. SUMMARY AND ORDER LANGUAGE
There may be other defenses to plaintiff’s claims, some of
which

are

alluded

to

in

the

NOSC.

But,

after

careful

consideration, the court shall not dismiss any other claims on
the face of the pleadings currently before the court.
In summary, the court shall dismiss defendant Platt, the
Junction

City

Police

Department

from

plaintiff’s

§

Department

this
1983

case.
and

and

The

state

law

the

Riley

court

County

Police

also

dismiss

shall

official

capacity

claims

against defendants Opat and Virden as well as plaintiff’s § 1983
and state law claims against the KBI.

Plaintiff’s claims for

injunctive and declaratory relief shall also be dismissed.
The court shall permit plaintiff’s remaining claims to go
forward at this time.

The court shall direct the Clerk of the

Court to prepare waiver of service forms pursuant to Rule 4(d)
of

the

Federal

Rules

of

Civil

Procedure,

to

defendants Opat, Virden, Brown, and Babcock.

be

served

upon

The court further

directs the Clerk to prepare summons for service upon the Kansas
Bureau

of

Investigation

and

T-Mobile.

Plaintiff

shall

be

assessed no costs absent a finding by the court that plaintiff
is

able

to

pay

such

costs.
9

Plaintiff

has

the

primary

responsibility to provide sufficient address information for the
waiver

of

service

forms

or

for

complaint upon a defendant.

the

service

of

summons

and

See Nichols v. Schmidling, 2012 WL

10350 *1 (D.Kan. 1/3/2012); Leek v. Thomas, 2009 WL 2876352 *1
(D.Kan. 9/2/2009).

So, plaintiff is warned that if waiver of

service forms or summons cannot be served because of the lack of
address

information,

and

correct

address

information

is

not

supplied to the Clerk of the Court, ultimately the unserved
parties may be dismissed from this action.

See FED.R.CIV.P.

4(m).
IT

IS

THEREFORE

ORDERED

that

defendants

Platt,

Junction

City Police Department and Riley County Police Department be
dismissed

from

this

case

and

that

plaintiff’s

claims

for

injunctive and declaratory relief be dismissed.
IT IS FURTHER ORDERED that plaintiff’s § 1983 and state law
claims

against

defendants

Opat

and

Virden

in

their

official

capacities and plaintiff’s § 1983 and state law claims against
defendant KBI be dismissed.
IT

IS

defendant

FURTHER

Schoen

ORDERED

from

this

that

the

action

court

unless

shall

plaintiff

dismiss
files

a

motion to amend the complaint within 30 days of this order.
IT

IS

FURTHER

ORDERED

that

the

Clerk

issue

waiver

of

summons forms and prepare summons consistent with Section VII of
this order.
10

Dated this 25th day of July, 2017, at Topeka, Kansas.

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

11