Ford (85197) v. McKinney et al

Filing 25

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including March 16, 2018, to show cause and to submit an amended complaint as directed. The following motions are denied: Doc. 9 motion for hearing; Doc. 10 motion for hearing ; Doc. 11 motion to appoint counsel; Doc. 12 motion to reconsider appointment of counsel; Doc. 13 motion for other affirmative defenses; Doc. 14 motion for reconsideration of order; Doc. 18 motion to access additional case information; Doc. 19 motion for procedural order under Rule 27; Doc. 20 motion for order; Doc. 22 motion for judgment on the pleadings; and Doc. 23 motion for issuance of subpoena. Signed by District Judge Sam A. Crow on 01/31/18. Mailed to pro se party Dominick James Ford by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DOMINICK JAMES FORD,
Plaintiff,
v.

CASE NO. 16-3241-SAC

CASEY McKINNEY, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed under 42 U.S.C. § 1983.
Plaintiff, now a prisoner in state custody, proceeds pro se and in
forma pauperis.
Background
Plaintiff brings this action against unnamed individuals
employed by the Topeka, Kansas, Police Department, Shawnee County
Sheriff’s Department, Shawnee County District Attorney’s Office, and
the Topeka Capitol Journal. He also sues the complaining witness in
the criminal charges brought against him.
Plaintiff states that in August 2014, he was accused of a crime.
As a result of the charges, he was placed on a regional most wanted
list, and his name and photograph appeared in local media.
In January 2015, he was arrested by a federal task force.
Plaintiff was unable to make bail. A preliminary hearing was conducted
in spring 2015, and trial was set for July 7, 2015. However, after
the complaining witness failed to appear at the trial, the prosecution
dismissed the charges.1

1

Plaintiff is currently incarcerated on unrelated charges.

Screening
The Court is required to screen complaints filed by a prisoner
seeking relief against a governmental entity or an officer or employee
of a governmental entity. 28 U.S. C. s 1915A(a). The Court must dismiss
a complaint or any portion of a complaint if a plaintiff presents
claims that are legally frivolous, fail to state a claim on which
relief may be granted, or seek relief from a defendant immune from
such relief.

28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).

“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, 48-49 (1988) (citations omitted); Northington v. Jackson, 973 F.2d
1518, 1523 (10th Cir. 1992).

A court liberally construes a pro se

complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

In

addition, the court accepts all well-pleaded allegations in the
complaint as true.
2006).

Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.

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).
A pro se litigant’s “conclusory allegations without supporting
factual averments are insufficient to state a claim upon which relief

can be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

“[A] plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (citations omitted).

The complaint’s

“factual allegations must be enough to raise a right to relief above
the speculative level” and “to state a claim to relief that is
plausible on its face.”

Id. at 555, 570.

The Tenth Circuit Court of Appeals has explained “that, to state
a claim in federal court, a complaint must explain what each defendant
did to [the pro se plaintiff]; when the defendant did it; how the
defendant’s action harmed (the plaintiff); and, what specific legal
right the plaintiff believes the defendant violated.”

Nasious v. Two

Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d
1158, 1163 (10th Cir. 2007).

The court “will not supply additional

factual allegations to round out a plaintiff’s complaint or construct
a legal theory on plaintiff’s behalf.”

Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).
The Tenth Circuit has pointed out that the Supreme Court’s
decisions in Twombly and Erickson gave rise to a new standard of review
for § 1915(e)(2)(B)(ii) dismissals.

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).

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 (quotation marks and citations omitted).

Under this new

standard, “a plaintiff must nudge his claims across the line from
conceivable to plausible.”
and citation omitted).

Smith, 561 F.3d at 1098 (quotation marks

Bloom v. McPherson, 346 Fed. App’x. 368, 372

(10th Cir. 2009); Robbins, 519 F.3d at 1247–48; see Ellibee v. Fox,
244 Fed. App’x. 839, 843 (10th Cir. 2007). “Plausible” in this context
does not mean “likely to be true,” but rather refers “to the scope
of the allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent,” then the
plaintiff

has

not

“nudged

conceivable to plausible.”

(his)

claims

across

the

line

from

Robbins, 519 F.3d at 1247 (citing

Twombly, at 1974).
Discussion
1. Newspaper employees
First, the Court considers plaintiff’s claims against two
unnamed employees of the Topeka Capitol Journal, identified as the
editor of the on-line edition of the newspaper, and a journalist
employed by the newspaper.
Because plaintiff is suing these defendants under 42 U.S.C.
§1983, he must demonstrate both that there was a constitutional
violation and that the violation was committed by a state actor. West
v. Atkins, 487 U.S. 42, 48 (1988). The complaint does not identify
any grounds for a finding that these defendants are state actors. See
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.
1995)(“[T]he only proper defendants in a [§] 1983 claim are those who
represent the state in some capacity….”)

A claim that “a private actor conspired with a state actor” may
be sufficient to satisfy the requirement of action taken under color
of state law. Olson v. Carmack, 641 Fed.Appx. 822, 827 (10th Cir.
2016). However, such a claim must be supported by specific facts that
a private citizen conspired with a state actor to violate the
plaintiff’s rights. Id. Here, plaintiff appears to allege no more than
that the newspaper published accurate facts, namely, that he was
placed on the Northeast Kansas Most Wanted list based upon criminal
charges filed against him. This claim is insufficient to allege a
conspiracy. Accordingly, these defendants are subject to dismissal.
2. Complaining witness
Plaintiff’s claim against defendant McKinney also is subject to
dismissal. The assertion that she made a false report to police
concerning the plaintiff is insufficient to identify her as a state
actor. See Bennett v. Johnson, 500 Fed.Appx. 776, 778 (10th Cir.
2012)(finding plaintiff had not shown that a person who reported
plaintiff’s conduct to police and testified against him was acting
“under color of state law”).
3. Prosecutor’s Office
Plaintiff claims an unnamed prosecutor of the Shawnee County
District Attorney’s Office prepared “to engage in the evidence of
conflicting statements, KBI lab results, warrants, and the change of
[defendant] McKinney[’s] testimony at preliminary hearing and still
failed to dismiss charges.” (Doc. #1, p.4).
Plaintiff’s claims against this defendant fail on the ground of
prosecutorial immunity. Prosecutors are absolutely immune from
liability for damages in actions against them for their actions taken
“in initiating a prosecution and in presenting the State’s case.”

Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Plaintiff’s claim
appears to allege that the defendant wrongfully failed to dismiss the
charges against him before trial. The decision to pursue legal action,
however, is squarely within the immunity afforded a prosecutor.
Therefore, this defendant is subject to dismissal from this action.
And, while plaintiff points to the fact that the charges
eventually were dismissed after the complaining witness failed to
appear at plaintiff’s trial, the dismissal of those charges is not
a favorable termination that might support a claim of malicious
prosecution. Rather, Tenth Circuit precedent requires, in the context
of a claim of malicious prosecution, that the termination of the
criminal proceedings “must in some way indicate the innocence of the
accused.” Cordova v. City of Albuquerque, 816 F.3d 645, 651 (10th Cir.
2016)(quotations omitted). Here, the dismissal was due to the failure
of the complaining witness to appear at the trial. That dismissal,
while of considerable benefit to the plaintiff, does not support his
innocence.
4. Shawnee County Detectives, Shawnee County Sheriff’s Department,
and Topeka Police Department
Plaintiff claims that unnamed law enforcement officers employed
by Shawnee County Sheriff’s Department and the Topeka Police
Department violated his rights by “preparation as a witness to engage
in improper investigation, illegal police conduct, false arrest,
false imprisonment, … unlawful seizure…” Doc. #1, p. 1, and by lying
to a judge, resulting in the issuance of warrants. (id., p. 2).
To the extent plaintiff alleges a defendant lied to a judge by
presenting false documents in order to obtain an arrest warrant, the

claim is properly construed as claims of malicious prosecution. See
Myers v. Koopman, 738 F.3d 1190, 1194 (10th Cir. 2013)(finding that
plaintiff’s claim alleging detective sought an arrest warrant using
a falsified affidavit of probable cause should have been construed
as a malicious prosecution claim rather than one of false
imprisonment). Here, a claim of malicious prosecution fails because
the termination of the criminal action does not indicate that
plaintiff is innocent. See Cordova, 816 F.3d at 651.
The balance of plaintiff’s claims against these defendants is
subject to dismissal because he presents only vague and conclusory
claims of unconstitutional conduct that are insufficient to state a
plausible claim under § 1983. Although plaintiff proceeds pro se and
is entitled to a liberal construction of his pleadings, he still must
comply with the fundamental requirements of the Federal Rules of Civil
Procedure. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir.
1994). Under the federal rules, a complaint must present “a short and
plain statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2).
The court need not accept conclusory allegations without
supporting allegations of fact. Southern Disposal, Inc., v. Texas
Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). Rather, plaintiff must
present facts that make the claims plausible and push the “right of
relief above the speculative level.” Twombly, 550 U.S. at 558. Here,
plaintiff does not provide specific allegations of fact to allow the
Court to consider what conduct each of the law enforcement defendants

committed, when that conduct occurred and how it harmed the plaintiff.
Accordingly, in order to avoid the dismissal of these defendants, he
must present an amended complaint that notifies each law enforcement
defendant what specific conduct is alleged, when it occurred, how it
harmed him, and the legal rights involved.
Pending motions
The Court has examined the entire record, including the motions
submitted by the plaintiff. Having concluded that review, the Court
enters the following rulings on the pending motions:
Plaintiff’s motion for a hearing to provide oral argument (Doc.
#9) is denied.
Plaintiff’s motion for default hearing (Doc. #10) and for a
procedural order finding the defendants in default (Doc. #19) are
denied. The Court has not ordered service of process in this matter,
and there has been no default by any party.
Plaintiff’s motion to appoint counsel (Doc. #11) and his motions
for the reconsideration of the Court’s ea7urlier ruling denying the
appointment of counsel (Docs. #12 and #14) are denied. There is no
constitutional right to the appointment of counsel in a civil action.
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989), Carper v. DeLand,
54 F.3d 613, 616 (10th Cir. 1995). Instead, the decision whether to
appoint counsel lies in the discretion of the court. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991).
Because the Court has determined that many of the defendants to
this action are subject to dismissal, and because plaintiff will be

required to show cause and submit an amended complaint in this matter,
the Court declines to appoint counsel at this time.
Plaintiff’s motion for other affirmative defenses (Doc. #13)
does not state any ground for relief that appears to be relevant to
this action. The motion is denied.
Plaintiff’s motion to access additional case information (Doc.
#18) and for an order asking the court to order the forwarding of copies
(Doc. #20) are denied. Plaintiff filed these motions while
incarcerated in the Shawnee County Jail, where he had limited access
to legal resources and photocopying services. Because he now resides
in a state correctional facility, his requests are moot.
Plaintiff’s motion for judgment on the pleadings (Doc. #22) and
his motion for subpoenas to require a response (Doc. #23) are denied.
The first motion essentially seeks judgment on the pleadings due to
the failure to timely serve a responsive pleading. However, as
discussed above, the Court has not ordered the service of process in
this matter. Accordingly, there is no default. And, because the Court
has identified several deficiencies in the complaint, the Court finds
no ground warranting the issuance of service of process at this time
and denies the motion for subpoenas.
Order to Show Cause
For the reasons set forth, the Court directs plaintiff to show
cause why the defendants employed by the Capital Journal and the
Shawnee County District Attorney’s Office and defendant McKinney
should not be dismissed from this action. Plaintiff also is directed

to submit an amended complaint that specifically identifies the
factual and legal grounds for his claims against the remaining
defendants. The failure to file a timely response may result in the
dismissal of this matter for failure to state a claim for relief.

IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including March 16, 2018, to show cause and to submit an amended
complaint as directed.
IT IS FURTHER ORDERED the following motions are denied:
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.
Doc.

#9 motion for hearing;
#10 motion for hearing;
#11 motion to appoint counsel;
#12 motion to reconsider appointment of counsel;
#13 motion for other affirmative defenses;
#14 motion for reconsideration of order;
#18 motion to access additional case information;
#19 motion for procedural order under Rule 27;
#20 motion for order;
#22 motion for judgment on the pleadings; and
#23 motion for issuance of subpoena.

IT IS SO ORDERED.
DATED:

This 31st day of January, 2018, at Topeka, Kansas.

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