Ford (85197) v. McKinney et al

Filing 38

MEMORANDUM AND ORDER dismissing this matter for failure to state a claim for relief. IT IS FURTHER ORDERED plaintiff's motions for waiver of service 26 , for summary judgment 27 , for punitive and declaratory damages 31 , for continuance 32 , to supplement the complaint to add additional damages requests 34 , to obtain the Court's notes 35 and to clarify 37 are denied. Signed by District Judge Sam A. Crow on 8/31/2018. Mailed to pro se party Dominick James Ford by regular mail. (mls)

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.

MEMORANDUM AND ORDER
This matter is a civil rights action filed under 42 U.S.C. § 1983
by a prisoner in state custody. Plaintiff proceeds pro se and in forma
pauperis. By its previous order, the Court directed plaintiff to
respond to an order to show cause and allowed him to submit an amended
complaint (Doc. #25).
Plaintiff filed a response and an amended complaint. The Court
has screened the amended complaint and enters the following findings
and order.
Background
Plaintiff was charged in the District Court of Shawnee County,
Kansas, with rape and criminal sodomy in Case No. 2014-CR-0022751.
Prior to his arrest, he was placed on the Northeast Kansas Most Wanted
List.
Following a preliminary hearing on March 18, 2015, the state
district judge found that a crime was committed and that there was
probable cause to believe the plaintiff committed the crimes charged.
Plaintiff was formally arraigned and entered pleas of not guilty. The
In constructing this summary, the Court has reviewed on-line records maintained
by the Shawnee County District Court.
https://www.kansas.gov/countyCourts/search/records.
1

court dismissed one count but bound plaintiff over for trial on another
count.
At the jury trial scheduled for July 6, 2015, the complaining
witness failed to appear in response to a subpoena. The district court
dismissed the case without prejudice.
The amended complaint
Plaintiff has submitted an amended complaint (Doc. #29) and
motions for issuance of waiver of service (Doc. #26), for summary
judgment (Doc. #27), for relief (Doc. #31), for continuance (Doc.
#32), to supplement (Doc. #34), to obtain court’s notes (Doc. #35)
and to clarify (Doc. #37).
The amended complaint contains a single count alleging “racial
discrimination, malicious prosecution, slander, libel, mental
anguish, 14th Amendment, 5th Amendment, racial profile, and
prosecutorial misconduct.” (Doc. #29, p. 4.)2
As the Court explained in its earlier order, it must screen
plaintiff’s complaint and must dismiss a complaint or any part of a
complaint that fails to state a claim for relief, that is legally
frivolous, or that seeks relief from a defendant who is immune. 28
U.S.C. § 1915A(a)-(b). Because plaintiff proceeds pro se, the court
must liberally construe the pleadings, a standard that requires that
“if the court can reasonably read the pleadings to state a valid claim
on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence structure, or
As supporting facts, plaintiff states, “T.P.D., D.A. charged black suspect after
dropping charges of two white suspects, plus black suspect was placed on Northeast
Kansas Most Wanted list and news and newspapers in Topeka, Kansas. The State of Kansas
deprived petitioner of his due process and equal protection of the law, with no
physical evidence to support rape, to take black suspect to preliminary hearing and
trial, doesn’t take the white suspect to prelim. or trial.” Id.
2

his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
However, a court cannot act as an advocate for a pro se plaintiff.
Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). A pro se
plaintiff may not rest on “conclusory allegations without supporting
factual averments”. Hall v. Bellmon, 935 F.2d 1106, 110 (10th Cir.
1991). Instead, a plaintiff’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.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 570 (2007).
The Court has examined plaintiff’s amended complaint under these
standards and concludes that it fails to present a claim for relief.
First, his claims of discrimination and racial profiling are vague
and unsupported. Although he alleges that charges against other
individuals were dropped, he fails to allege facts to explain how that
prosecutorial decision was unconstitutional or otherwise illegal.
Likewise, plaintiff asserts claims of slander and libel, which the
court liberally construes to challenge his placement on the Northeast
Kansas Most Wanted list and its publication in local media. However,
plaintiff again offers no legal or factual explanation for how these
actions violated his rights.
Third, plaintiff asserts a claim of malicious prosecution. To
state a malicious prosecution claim, a plaintiff must show: (1) the
defendant caused the continued confinement or prosecution; (2) the
original action terminated in favor of the plaintiff; (3) that no
probable cause supported the original arrest, continued confinement,
or prosecution; (4) the defendant acted with malice; and (4) the
plaintiff sustained damages. Wilkins v. DeReyes, 528 F.3d 790, 799

(10th Cir. 2008).
In determining whether the termination of a criminal case was
favorable, the courts must consider the “stated reasons for the
dismissal as well as to the circumstances surround it” to determine
whether “the dismissal indicates the accused’s innocence.” Id. at 803.
“[A] plaintiff generally cannot maintain a malicious prosecution
action unless his charges were dismissed in a manner indicative of
innocence, even when he was entitled to dismissal on statutory or
constitutional grounds.” Cordova v. City of Albuquerque, 816 F.3d 645,
653 (10th Cir. 2015).
Here, the dismissal of the criminal action against plaintiff does
not indicate that he was innocent. The trial court dismissed the
criminal case against plaintiff without prejudice because the
complaining witness failed to appear in response to a subpoena.
Therefore, plaintiff fails to state a claim of malicious prosecution
because he does not satisfy the favorable termination requirement.3
Fourth, plaintiff alleges prosecutorial misconduct, a claim that
appears to arise from the decision to charge him in a criminal
complaint. “Absolute prosecutorial immunity is a complete bar to a
suit for damages under 42 U.S.C. § 1983.” Mink v. Suthers, 482 F.3d
1244, 1258 (10th Cir. 2007)(citing Imbler v. Pachtman, 424 U.S. 409,
419 n. 13 (1976)). When a prosecutor’s actions are taken in the
initiation of a case while acting as an advocate and an officer of
the court, the prosecutor is shielded by absolute immunity. Id. at
430. Here, plaintiff states only that the district attorney charged
him after dismissing charges against two other persons. Those actions
Because the claim fails on that ground, the Court need not discuss the remaining
elements of malicious prosecution.
3

are shielded by absolute immunity.
Plaintiff’s bare citation of the Fifth and Fourteenth Amendments
appears to be a challenge to the sufficiency of the evidence against
him. However, this claim is no more than a conclusory statement that
fails to present an arguable claim for relief under the Twombly
standard.
Finally, plaintiff’s claim of mental anguish fails because the
Prison Litigation Reform Act bars a prisoner from recovering for
“mental or emotional injury.” 42 U.S.C. § 1997e(e).
Conclusion
For the reasons set forth, the Court concludes that plaintiff’s
amended complaint fails to state a claim for relief. The Court also
has carefully reviewed the motions filed by plaintiff and concludes
that he is not entitled to the issuance of service in this matter,
to summary judgment, or to any additional continuance or relief in
this matter.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
for failure to state a claim for relief.
IT IS FURTHER ORDERED plaintiff’s motions for waiver of service
(Doc. #26), for summary judgment (Doc. #27), for punitive and
declaratory damages (Doc. #31), for continuance (Doc. #32), to
supplement the complaint to add additional damages requests (Doc.
#34), to obtain the Court’s notes (Doc. #35) and to clarify (Doc. #37)
are denied.
IT IS SO ORDERED.
DATED:

This 31st day of August, 2018, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge