Smith (ID 88575) v. Kagay et al
MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim for relief. Signed by U.S. Senior District Judge Sam A. Crow on 05/02/17. Mailed to pro se party Solomon Omega Smith by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SOLOMON OMEGA SMITH,
CASE NO. 16-3019-SAC-DJW
MICHAEL F. KAGAY, et al.,
MEMORANDUM AND ORDER
This matter is a civil rights complaint filed under 42 U.S.C.
§ 1983. On July 19, 2016, U.S. Magistrate Judge Waxse directed
plaintiff to show cause why this matter should not be dismissed for
failure to state a claim for relief. Plaintiff filed a timely response.
Plaintiff sustained injuries in an April 2014 accident. In July
2014, he was arrested on an outstanding warrant. The state district
judge denied plaintiff an O.R. bond, and he was held in the Shawnee
County Jail until April 2015. Plaintiff states that as a result of
that detention, he was unable to obtain adequate treatment for a
traumatic brain injury he suffered in the April 2014 accident.
The defendants are the state district judge, two assistant
district attorneys, Shawnee County, Kansas, and the State of Kansas.
Judge Waxse’s order first explained that the district judge was immune
from suit, as the decision to deny plaintiff an O.R. bond was within
the authority of the judge.
Likewise, Judge Waxse found that the plaintiff’s claims against
the assistant district attorneys were barred by prosecutorial
immunity, as their arguments concerning bond were within their roles
as advocates for the State.
Finally, Judge Waxse found that plaintiff had identified no
ground for liability against Shawnee County or the State of Kansas
arising from the decision to deny plaintiff an O.R. bond.
The Court has carefully reviewed plaintiff’s response (Doc. #8)
and supplement (Doc. #9). In conducting this review, the Court is
mindful that plaintiff’s pro se pleadings must be given a liberal
construction. See Hall v. Ballmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, this liberal construction does not relieve the
plaintiff of the burden of alleging sufficient facts to state a legally
cognizable claim, and the Court “will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal
theory on plaintiff’s behalf.” Smith v. United States, 561 F.3d 1090,
1096 (10th Cir. 2009)(citing Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997)).
A prosecutor acting within the scope of his duties as a prosecutor
has absolute immunity from suit under Section 1983 for actions taken
“in initiating a prosecution and in presenting the State’s case.”
Imbler v. Pachtman, 424 U.S. 409, 424, 431 (1976). Whether a prosecutor
is entitled to this immunity depends on the nature of the function
performed by the prosecutor at the time of the alleged misconduct.
Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993). Here, the action
of refiling charges falls within the role of initiating a prosecution,
and the defendant prosecutors are entitled to absolute prosecutorial
Likewise, a judge is entitled to absolute judicial immunity for
acts that were judicial in nature and were not taken in the clear
absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 359
(1978). The bond decision at issue in this matter is clearly judicial
in nature, and the defendant judge is entitled to absolute judicial
The Court concludes that plaintiff’s claims challenge the
decision of the state prosecutors to refile charges against him and
the action of the state district judge in denying him bond. See Doc.
#8 at p. 1 (“…the court system knew I needed treatment…and they said
because of my past criminal history I would not be given bond….”) and
p. 2 (“I feel the DA’s office knew that I was in a[n] accident and
overlooked it and still filed those charges anyways.”) In the
supplement, plaintiff states “I was arrested …and made to sit in
Shawnee County Jail non-bondable the [w]hole time and was not
al[lowed[ to get the rehabilitation I needed.” (Doc. #9, at p. 2).
He also states “I needed to be released from jail so that I could go[.]
I was not released or even given a cash bond the [w]hole time I was
in Jail so that I could get treatment.” Id. at pp. 1-2.
The Court agrees these claims are barred by prosecutorial and
judicial immunities and finds that plaintiff has not presented any
facts that state a claim for relief against Shawnee County, Kansas
or the State of Kansas. Accordingly, this action must be dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
for failure to state a claim for relief.
IT IS SO ORDERED.
This 2nd day of May, 2017, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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