Clark v. Wells et al

Filing 28

MEMORANDUM AND ORDER ENTERED: Defendants' motion to dismiss 8 is denied as moot. Defendants' motion to dismiss for failure to state a claim for relief 17 is granted. Plaintiff's complaint against the defendants Terra D. Morehead and United States of America is dismissed for failure to state a claim for relief. Signed by U.S. District Senior Judge Sam A. Crow on 11/21/17. Mailed to pro se party Enoch Clark, III by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ENOCH CLARK III,
Plaintiff,
vs.

Case No. 16-3119-SAC

OFFICER KEVIN WILLS,
OFFICER SARAH PANJADA,
SERGEANT PHILLIP TRUSSKEY,
TERRA D. MOREHEAD, and
UNITED STATES OF AMERICA,
Defendants.
MEMORANDUM AND ORDER
The plaintiff Enoch Clark III, an inmate at F.C.I. Greenville in
Greenville, Illinois, is seeking relief under 42 U.S.C. § 1983 against the
named Kansas City, Kansas police officers, Kevin Wills, Sarah Panjada and
Phillip Trusskey, for Fourth Amendment violations arising from their search
and seizure of Mr. Clark on March 7, 2014. The plaintiff Clark is also bringing
a Bivens1 action seeking relief against the Assistant United States Attorney
Terra D. Morehead for malicious prosecution and abuse of process on
charges arising from the unlawful search and seizure. Clark alleges the
United States of America is “legally responsible for the unlawful acts
committed by” its employees. ECF#15, ¶ 9. The plaintiff originally brought
this action against only the defendant officers who had filed then a motion to

Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).

1

1

dismiss for failure to state a claim arguing that the § 1983 action had not
been filed within two years of Clark’s arrest in March of 2014. ECF# 8. The
plaintiff responded by filing a first amended complaint adding the defendants
Morehead and United States of America and adding the claims of malicious
prosecution and abuse of process. ECF# 15. The plaintiff also filed separately
a response stating that the defendant officers’ motion was moot. ECF# 16.
The court agrees this motion to dismiss (ECF# 8) is moot in light of
subsequent filings and is denied for that reason. The first amended
complaint, however, has not been screened, and no summons has been
issued on these additional Bivens defendants. The court will address these
matters below.
The defendant officers have filed a second motion to dismiss for
failure to state a claim again arguing that the governing two-year statute of
limitations commenced with the Clark’s arrest and custody on March 7,
2014, and expired before he filed this action on June 6, 2016. ECF# 17.
Citing Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 549
U.S. 384 (2007), the plaintiff Clark contends his § 1983 claim for “wrongful
seizure” is not untimely, for he could not have commenced his action “until
his motion to suppress the evidence was granted” by the federal district
court judge in his criminal case. ECF# 22. In reply, the defendant officers
counter Clark’s argument as a misreading of Heck which is inapplicable
because Clark was not convicted of any offense related to the March 7th
2

events. The defendants point to Wallace as clarifying that the possibility of
Clark’s conviction on the March 7th events did not delay the accrual of
Clark’s wrongful search and seizure claims. The defendants also deny the
plaintiff has alleged a Fourth Amendment malicious prosecution claim. If
Clark had alleged one, the defendants say this claim too would not survive
their 12(b)(6) motion. This is because the dismissal of charges upon a
successful suppression motion does not qualify as a favorable termination for
a malicious prosecution claim according to Margheim v. Buljko, 855 F.3d
1077, 1089 (10th Cir. 2017).
STANDARDS GOVERNING RULE 12(B)(6) MOTIONS
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a
person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48
(1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523
(10th Cir. 1992). In addressing a claim brought under § 1983, the analysis
begins by identifying the specific constitutional right allegedly infringed.
Graham v. Connor, 490 U.S. 386, 393-94 (1989). The validity of the claim
then must be judged by reference to the specific constitutional standard
which governs that right. Id.
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
3

Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all wellpleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d
910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief,”
dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558
(2007).
The court “will 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, 1173-74 (10th Cir. 1997) (citation
omitted). The same standard used for Fed. R. Civ. P. 12(b)(6) motions is
used for 28 U.S.C. § 1915 dismissals, and this includes the newer language
and meaning taken from Twombly and its “plausibility” determination. See
Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see
also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009), cert.
denied, 558 U.S. 1148 (2010). As a result, courts “look to the specific
allegations in the complaint to determine whether they plausibly support a
legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this
new standard, “a plaintiff must ‘nudge his claims across the line from
conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted).The
court accepts as true “all well-pleaded factual allegations in a complaint and
view[s] these allegations in the light most favorable to the plaintiff.” Id. The
court’s obligation to accept a complaint's allegations as true is tempered by
4

the principle that “mere labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not suffice; a plaintiff must offer
specific factual allegations to support each claim.” Kansas Penn Gaming, LLC
v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting in part Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks
omitted)).
STATUTE OF LIMITATIONS
The governing statute of limitations in § 1983 actions is the state
statute of limitations for personal injury actions. See Hardin v. Straub, 490
U.S. 536, 539 (1989); Brown v. Unified Sch. Dist. 501, Topeka Pub. Schs.,
465 F.3d 1184, 1188 (10th Cir. 2006). “For Kansas, this is the two-year
limitations period in K.S.A. § 60-513(a).” Brown, 465 F.3d at 1188. The
accrual of a § 1983 claim, however, is a matter of federal law and occurs
“when the plaintiff has a complete and present cause of action.” Wallace v.
Kato, 549 U.S. 384, 388 (2007).
“A § 1983 action accrues when facts that would support a cause
of action are or should be apparent.” Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir.)(internal quotation marks and citation omitted), cert. denied, 549
U.S. 1059 (2006). The common-law tort principles applied to § 1983 include
“the standard rule that [accrual occurs] when the plaintiff has a complete
and present cause of action, that is, when the plaintiff can file suit and
obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (internal quotation
5

marks and citations omitted). Thus, “[t]here can be no dispute that
petitioner could have filed suit as soon as the allegedly wrongful arrest
occurred, subjecting him to the harm of involuntary detention, so the statute
of limitations would normally commence to run from that date.” Id. But for a
false imprisonment claim, the Supreme Court in Wallace distinguished the
accrual date as when the false imprisonment ends, that is, when detention
without legal process ends and the victim is “bound over by a magistrate or
arraigned on charges.” Id. at 389-90 (citations omitted). “From that point
on, any damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than detention
itself.” Id. at 390 (internal quotation marks and citations omitted). The
Tenth Circuit has summarized this relevant law as follows:
A claim of false imprisonment accrues when the alleged false
imprisonment ends. Wallace v. Kato, 549 U.S. 384, 389, 127 S.Ct.
1091, 166 L.Ed.2d 973 (2007). A claim of malicious prosecution does
not accrue until the criminal proceedings have terminated in the
plaintiff's favor. See Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994); Robinson v. Maruffi, 895 F.2d 649,
654–55 (10th Cir.1990). . . .
What separates the two claims?—the institution of legal process.
Unreasonable seizures imposed without legal process precipitate
Fourth Amendment false imprisonment claims. See Wallace, 549 U.S.
at 389, 127 S.Ct. 1091 (concluding that false imprisonment was the
proper analogy where defendants did not have a warrant for the
plaintiff's arrest and thus detention occurred without legal process).
Unreasonable seizures imposed with legal process precipitate Fourth
Amendment malicious-prosecution claims. See Heck, 512 U.S. at 484,
114 S.Ct. 2364 (where detention occurs with legal process the
“common-law cause of action for malicious prosecution provides the
closest analogy”).

6

Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013) (footnote
omitted), cert. denied, 134 S.Ct. 2842 (2014).
The plaintiff Clark attaches to his amended complaint the federal
district court opinion granting his motion to suppress, and it establishes that
the search, seizure and arrest on March 7th occurred without legal process.
ECF# 15-1. The plaintiff also alleges he was released from Wyandotte
County Detention Center on March 10, 2014, without being charged.2 Thus,
the statute of limitations against the state officers for the unlawful search
and wrongful arrest claims accrued on March 7th and for any false
imprisonment claim on March 10th. The complaint does not allege the state
officers taking any further actions after this date. Because the plaintiff
waited until June 6, 2016, to file this civil rights action, the statute of
limitations expired on these claims.
Against the state officers, the plaintiff’s original and amended
complaints allege only Fourth Amendment claims for unlawful search,
seizure and detention. Clark summarily analogizes these claims to a
malicious prosecution tort which has as one of its elements the “’termination
of the . . . proceeding in favor of the accused’; and accordingly, the statute
2

The federal criminal proceedings began in November of 2014 with a complaint naming
Clark as one of four defendants in two criminal counts. United States v. Clark, No. 1420130, ECF #1. This complaint which served as the basis for Clark’s arrest warrant includes
no charges based on the March 7th events. Id. The magistrate judge ordered Clark’s
detention based on these other charged violations. No. 14-20130, ECF# 26. The indictment
that was filed a couple weeks later names Clark in two counts, and neither of them involve
the March 7th events. No. 14-20130, ECF# 29. Indeed, the March 7th events were added
as charges only in the superseding indictment filed in December of 2014, but Mr. Clark was
already detained based on the original charges which do not involve the March 7th events.
No. 14-20130, ECF# 37.

7

of limitations does not start to run until that termination takes place.”
Manuel v. City of Joliet, Ill., --- U.S. ---, 137 S.Ct. 911, 921 (2017) (quoting
Heck v. Humphrey, 512 U.S. at 484). In Heck, the state prisoner’s § 1983
claims, “if true, would have established the invalidity of his outstanding
conviction,” and so the Court “analogized his suit to one for malicious
prosecution.” Wallace, 549 U.S. at 392. The Heck decision “rested this
conclusion upon ‘the hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments.’” Id.
(quoting Heck, 512 U.S. at 486). Thus, “the Heck rule for deferred accrual is
called into play only when there exists ‘a conviction or sentence that has not
been . . . invalidated,’ that is to say, an ‘outstanding criminal judgment.’ It
delays what would otherwise be the accrual date of a tort action until the
setting aside of an extant conviction which success in that tort action would
impugn.” Id. at 393. The plaintiff Clark’s argument for deferred accrual is
fruitless under Heck as he had no extant conviction, and his argument for
deferred accrual based on the possibility of a future conviction was rejected
by Wallace. The Supreme Court said there:
What petitioner seeks, in other words, is the adoption of a principle
that goes well beyond Heck: that an action which would impugn an
anticipated future conviction cannot be brought until that conviction
occurs and is set aside. The impracticality of such a rule should be
obvious. In an action for false arrest it would require the plaintiff (and
if he brings suit promptly, the court) to speculate about whether a
prosecution will be brought, whether it will result in conviction, and
whether the pending civil action will impugn the verdict, see Heck, 512
U.S. at 487 n. 7—all this at a time when it can hardly be known what
evidence the prosecution has in its possession. . . .
8

We are not disposed to embrace this bizarre extension of Heck.
If a plaintiff files a false-arrest claim before he has been convicted (or
files any other claim related to rulings that will likely be made in a
pending or anticipated criminal trial), it is within the power of the
district court, and in accord with common practice, to stay the civil
action until the criminal case or the likelihood of a criminal case is
ended. [citations omitted]. If the plaintiff is ultimately convicted, and if
the stayed civil suit would impugn that conviction, Heck will require
dismissal; otherwise, the civil action will proceed, absent some other
bar to suit. [citations omitted].
Id. at 393-94. The plaintiff’s arguments for deferred accrual under Heck and
Wallace are without merit.
Even assuming the plaintiff was bringing a § 1983 malicious
prosecution claim against the defendant officers, he would have to prove as
one of the required elements that the related original criminal action
terminated in his favor. Wilkins v. DeReyes, 528 F.3d 790, 799, 803 (10th
Cir. 2008), cert. denied, 555 U.S. 1212 (2009). “[T]o qualify as favorable,
the termination of the original criminal proceeding must in some way
indicate the innocence of the accused.” Margheim v. Buljko, 855 F.3d 1077,
1086 (10th Cir. 2017) (internal quotation marks and citation omitted).
“[D]ismissals based on orders suppressing evidence on technical grounds
having no or little relation to the evidence’s trustworthiness” would not be
indicative of innocence. Id. (internal quotation marks and citation omitted).
The prosecutor’s dismissal of the charges related to the March 7th events
came after the federal district court suppressed evidence observed and
seized from the defendant and his vehicle during an investigative detention
for which the officers lacked reasonable suspicion. ECF# 15-1, p. 8.
9

Dismissal here based on the suppression order is not a favorable termination
under the holding in Margheim as there is nothing alleged questioning the
defendant’s actual commission of the crimes charged out of the March 7th
events. 855 F.3d at 1089. Thus, the plaintiff is unable to allege this required
element for a malicious prosecution claim.
The above shows that the plaintiff would be unable to state a
malicious prosecution claim against any of the named defendants in his
amended complaint. Moreover, the defendant Terra Morehead’s actions in
initiating and prosecuting these criminal charges in federal court are well
within her prosecutorial role, and she is absolutely immune from suit for
money damages for actions taken during the judicial process of initiating a
prosecution. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Finally, the
plaintiff’s Bivens claim against the United States and its agencies is barred
by sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994)(direct
action for damages against federal agencies not recognized under Bivens).
Accordingly, plaintiff cannot seek damages under Bivens from the United
States. Pursuant to its duty to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or an employee of
a governmental entity, 28 U.S.C. § 1915A(a), the court dismisses the
plaintiff’s amended complaint against the defendant Morehead and the
United States for failure to state a claim for relief.

10

IT IS THEREFORE ORDERED that the defendants’ motion to
dismiss (ECF# 8) is denied as moot;
IT IS FURTHER ORDERED that the defendants’ motion to dismiss
for failure to state a claim for relief (ECF# 17) is granted;
IT IS FURTHER ORDERED that the plaintiff’s complaint against
the defendants Terra D. Morehead and United States of America is dismissed
for failure to state a claim for relief.
Dated this 21st day of November, 2017, Topeka, Kansas.

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

11