Foster (ID 0109640) v. Henderson et al

Filing 15

ORDER ENTERED: The court directs the plaintiff to Show Cause by 12/15/2017 why the court should not take the following actions: abstain pursuant to the Younger doctrine; dismiss without prejudice plaintiff's claims for equitable relief; and stay plaintiff's claims for damages pending the resolution of the state court proceedings. Signed by District Judge Sam A. Crow on 11/15/17.Mailed to pro se party Semaj Leonard Foster by regular mail (daw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SEMAJ LEONARD FOSTER,
Plaintiff,
vs.

Case No. 16-3093-SAC

R. ANN HENDERSON and
RYAN W. WALKIEWICZ,
Defendants.

O R D E R
Plaintiff has filed a pro se complaint upon forms for an
action pursuant to 42 U.S.C. § 1983.

Plaintiff asserts that his

constitutional rights have been violated during the prosecution
of

state

criminal

charges

in

Johnson

County

District

Court.

Plaintiff claims that the state court acted without jurisdiction
because of a failure to bring his case to trial within the 180day time period set forth in K.S.A. 22-4303 for the disposition
of

detainers.

He

also

asserts

a

conflict

of

interest

by

defendant Walkiewicz.
The court has examined the docket of the Kansas Court of
Appeals.

It appears that plaintiff was convicted and sentenced

in Johnson County District Court, and that he has a pending
appeal before the Kansas Court of Appeals.

Plaintiff seeks

monetary damages for the days he has been incarcerated after the
expiration of the alleged deadline for bringing the criminal
1

case to trial.

He also seeks to have the defendants, who are

prosecuting attorneys, terminated from the state criminal case.
I. Pro se standards
“A

pro

se

litigant's

pleadings

are

to

be

construed

liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).

A pro se litigant, however, is not

relieved from following the same rules of procedure as any other
litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.
1992), cert. denied, 507 U.S. 940 (1993).

A district court

should

for

not

“assume

the

role

of

advocate

the

pro

se

litigant.” Hall, supra. Nor is the court to “supply additional
factual

allegations

to

round

out

a

plaintiff's

complaint.”

Whitney v. State of New Mexico, 113 F.3d 1170, 1173–74 (10th
Cir. 1997).
II. Screening standards
Title 28 United State Code Section 1915A requires the court
to

review

cases

governmental

filed

entity

by

or

prisoners

employee

to

seeking

redress

determine

from

whether

a

the

complaint is frivolous, malicious or fails to state a claim upon
which relief may be granted.

When deciding whether plaintiff’s

complaint

claim

granted,”

“fails
the

to

court

state
must

a

upon

determine

which

whether

relief
the

may

be

complaint

contains “sufficient factual matter, accepted as true, to ‘state
2

a claim for relief that is plausible on its face.’” Ashcroft v.
Iqbal,

556

Twombly,

U.S.

550

662,

U.S.

678

544,

(2009)(quoting

570

(2007)).

Bell

The

Atl.

court

Corp.

accepts

v.
the

plaintiff’s well-pled factual allegations as true and views them
in the light most favorable to the plaintiff.

United States v.

Smith, 561 F.3d 1090, 1098 (10th Cir.2009), cert. denied, 558
U.S. 1148 (2010).
III. Younger abstention
The

court

must

abstain

under

the

Younger

abstention

doctrine under the following conditions:
First, there must be ongoing state criminal,
civil, or administrative proceedings.
Second, the
state court must offer an adequate forum to hear the
federal plaintiff’s claims from the federal lawsuit.
Third, the state proceeding must involve important
state interests, matters which traditionally look to
state law for their resolution or implicate separately
articulated state policies.
Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997).

In

Goings v. Sumner County Dist. Attorney’s Office, 571 Fed.Appx.
634, 638-39 (10th Cir. 2014), the Tenth Circuit made clear that
when

these

conditions

are

satisfied

and

no

exceptional

circumstances are established to overcome the bar of Younger
abstention,

abstention

meritorious

defenses

is
of

mandatory,

even

prosecutorial

when

apparently

immunity

and

nonamenability to suit are raised via a Rule 12(b)(6) motion.
The Tenth Circuit acted similarly in Chapman v. Barcus, 372

3

Fed.Appx. 899, 901-02 (10th Cir. 2010), where it raised Younger
abstention sua sponte in spite of the evident lack of merit in
the appellant’s allegations.

On the face of the pleadings now

before the court, it appears that the vital elements for Younger
abstention may be present.
First,
criminal

to

the

court’s

proceeding.

knowledge,

Second,

it

there

appears

is

an

that

ongoing

the

state

proceedings offer an adequate forum to hear plaintiff’s claims
for

equitable

County

relief.

Plaintiff

Court

prosecution

District

contends
should

that

have

the

been

Johnson

dismissed

because it was not commenced according to the time limits of
K.S.A. 22-4303.
These

are

claims

proceedings

state

which

currently

proceeding
matters

Plaintiff also alleges a conflict of interest.

obviously

(1986)(“the

decided

important

resolved

by

Kelly

interest

by

Finally,

involves

See

States’

be

underway.

traditionally

policies.

could

v.
in

the

the

state

state

recourse

to

Robinson,

court

criminal

interests
state

479

administering

state

U.S.
their

law

and
and

36,

49

criminal

justice systems free from federal interference is one of the
most

powerful

of

the

considerations

that

should

influence

a

court considering equitable types of relief”).
Although there may be cases where damages claims have been
dismissed

under

expressed

a

Younger

preference

abstention,
to

stay
4

the

damages

Tenth

Circuit

has

claims

pending

the

outcome of the state court proceedings.

D.L. v. Unified School

District No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004) cert.
denied, 544 U.S. 1050 (2005); see also, Allen v. Bd. of Educ.,
Unified

Sch.

Dist.

1995)(expressing

436,

general

68

F.3d

preference

401,
for

(10th

Cir.

rather

than

404
stay

dismissal).
IV. Conclusion
Under
plaintiff

these
to

show

circumstances,
cause

by

the

December

should not take the following actions:

court
15,

2017

hereby
why

directs

the

court

abstain pursuant to the

Younger doctrine; dismiss without prejudice plaintiff’s claims
for equitable relief; and stay plaintiff’s claims for damages
pending the resolution of the state court proceedings.
IT IS SO ORDERED.
Dated this 15th day of November, 2017, at Topeka, Kansas.

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

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