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)

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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 5

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