Robinson (ID 93050) v. Goad

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions to proceed in forma pauperis 2 & 4 are granted. This matter is dismissed for failure to state a claim for relief. Signed by U.S. Senior District Judge Sam A. Crow on 02/28/17. Mailed to pro se party Elgin R. Robinson, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ELGIN R. ROBINSON, JR.,
Plaintiff,
v.

CASE NO. 17-3022-SAC-DJW

EMERY GOAD,
Defendant.

MEMORANDUM AND ORDER
This matter is a civil rights claim filed under 42 U.S.C. § 1983
by a prisoner in state custody. On February 14, 2017, U.S. Magistrate
Judge Waxse directed plaintiff to submit an initial partial filing
fee and to show cause why this matter should not be dismissed for
failure to state a claim for relief (Doc. #5). Plaintiff has submitted
the initial partial filing fee as directed, and the court grants leave
to proceed in forma pauperis.
Plaintiff also has submitted two responses to the order to show
cause (Docs. #6 and #7). The Court has reviewed the responses and
enters the following order.
Background
Plaintiff sues Emery Goad, a private investigator, alleging
violation of his rights under the Fifth, Sixth, and Fourteenth
Amendments. The materials in the record show that defendant Goad was
retained by plaintiff’s criminal defense team during his criminal
case. In 2008, Goad provided information obtained during discovery
to a reporter who published a news article discussing the information.
In 2013, the Office of the Kansas Attorney General Private
Detective Licensing Unit issued a summary order on a complaint filed

by plaintiff establishing as a condition to defendant’s continued
licensure that during the ensuing 12 months he remain free from any
violations of the state Private Investigator Act and associated state
regulations (Doc. #6, pp. 3-10).
Discussion
The remedy provided by 42 U.S.C. § 1983 authorizes suits only
against persons acting under color of state law. See McCarty v.
Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011)(“Section 1983 provides
a federal civil remedy for the deprivation of any rights, privileges,
or immunities secured by the Constitution by an person acting under
color of state law.”)(internal quotation marks omitted). The
defendant, a private investigator, is not a state actor.
A plaintiff can state a claim under Section 1983 by alleging that
a private citizen conspired with state actors to violate his federal
rights. See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005).
To plead such a conspiracy, a plaintiff may not rest on “mere
conclusory allegations with no supporting factual averments” but
rather “must specifically plead ‘facts tending to show agreement and
concerted action’.” Id.
Plaintiff fails to adequately plead a conspiracy. He alleges only
broadly that the defendant conspired with court-appointed counsel and
lead prosecutors (Doc. #6, pp. 1-2). The Court notes that both the
Kansas Court of Appeals and the Private Detective Licensing Unit of
the Office of the Kansas Attorney General previously determined that
petitioner had not presented any evidence supporting a conspiracy.
In affirming the denial of petitioner’s post-conviction
challenge, the Kansas Court of Appeals summarized correspondence from
the Kansas Disciplinary Administrator’s Office finding no ethical

violations by petitioner’s counsel “because they had no advance
knowledge of the investigator’s communications with the reporter, did
not condone the investigator’s actions, and immediately fired the
investigator when they learned what he had done.” Robinson v. State,
367 P.3d 1284 (Table), 2016 WL 1169381 at *6 (Kan.App. Mar. 25, 2016).
Likewise, the decision of the Private Detective Licensing Unit
states, in part, that “there is nothing offered by Robinson to support
an allegation that a conspiracy against Robinson existed between Goad
and the prosecution.” (Doc. #6, Attach. p. 6.)
Because there is no specific allegation supporting plaintiff’s
claim of a conspiracy, there is no legal ground for a claim against
defendant Goad under Section 1983.
In any event, however, plaintiff has failed to timely present
a claim under Section 1983. The statute of limitations for claims
brought under Section 1983 is “drawn from the personal-injury statute
of the state in which the federal district court sits.” Mondragon v.
Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).

In Kansas, the

two-year limitation period for personal injury actions applies. See
K.S.A. § 60-513(a)(4).
Federal law determines the accrual date of a claim under Section
1983. Wallace v. Kato, 549 U.S. 384, 388 (2007). Generally, an action
under Section 1983 “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. 2006), cert. denied, 549 U.S. 1059 (2006). Here,
plaintiff became aware of the facts concerning the transmission of
evidence to a reporter when the news article was published on June
15, 2008. See Doc. #6, p. 3. He offers no explanation for his failure
to present his claims within the limitation period.

Conclusion
The Court concludes plaintiff does not state a claim for relief
against defendant Goad.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motions to
proceed in forma pauperis (Docs. 2 and 4) are granted. Collection
action shall continue under 28 U.S.C. §1915(b) until plaintiff
satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED this matter is dismissed for failure to
state a claim for relief.
The clerk of the court shall transmit a copy of this order to
the Finance Office of the facility where plaintiff is incarcerated.
IT IS SO ORDERED.
DATED:

This 28th day of February, 2017, at Topeka, Kansas.

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