Hightower v. Kansas, State of et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until August 24, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint 1 should not be dismissed. Signed by Magistrate Judge David J. Waxse on 07/25/17. Mailed to pro se party Marcqual D. Hightower by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARCQUAL D. HIGHTOWER,
Plaintiff,
v.

CASE NO. 17-3044-SAC-DJW

STATE OF KANSAS, YOLANDA COLLINS,
and FNU LNU SEDGWICK COUNTY
DISTRICT COURT CHILD SUPPORT JUDGE,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Marcqual D. Hightower is hereby required to show good cause, in writing, to
the Honorable Sam A. Crow, United States District Judge, why this action should not be
dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
detained at the Sedgwick County Detention Center in Wichita, Kansas.

Plaintiff filed a

Complaint (Doc. 1), alleging the following. In 2009, Plaintiff was informed that he may possibly
be the father of a child and that he would be notified for a paternity test. A paternity test was not
administered at that time by “an authorized State of Kansas Health and/or licensed
representative.” Plaintiff was arrested for nonpayment of child support. Plaintiff filed a motion
with the state court requesting a paternity test, but the judge informed him “it was too late.” A
year and a half later, Plaintiff again motioned for a paternity test and the judge denied the
request. Plaintiff then had his own paternity test administered and it was “negative.” He showed
this test to the state court, to the child support office and to the child’s mother—defendant
Yolanda Collins. Plaintiff names as defendants the State of Kansas, the state court judge, and
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Yolanda Collins. Plaintiff challenges the state court judge’s denial of his two motions for
paternity testing and Collins’ actions in allowing him to go to jail and in allowing garnishment
his checks.
II. Statutory Screening of Prisoner Complaints
The Court is required 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 must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“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). 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. 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).
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

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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, 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 a plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
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 (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). “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 [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).

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III. DISCUSSION
A. State of Kansas
To bring a § 1983 claim, a plaintiff must show a “deprivation of a civil right by a
‘person’ acting under color of state law.” McLaughlin v. Bd. of Trustees of State Coll. of Colo.,
215 F.3d 1168, 1172 (10th Cir. 2000). The Supreme Court has held that “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989); see also Howlett v. Rose, 496 U.S. 356, 365 (1990) (“Will
establishes that the State and arms of the State, which have traditionally enjoyed Eleventh
Amendment immunity, are not subject to suit under § 1983.”).

Furthermore, the Eleventh

Amendment presents a jurisdictional bar to suits against a state and “arms of the state” unless the
state waives its immunity. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting
Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th
Cir. 2009)). Therefore, in the absence of some consent, a suit in which an agent or department of
the state is named as a defendant is “proscribed by the Eleventh Amendment.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Therefore, this action is subject to
dismissal against defendant State of Kansas because this defendant is not a “person” amenable to
suit under § 1983 and it is immune from suit under the Eleventh Amendment.
B. State Actor
A complaint brought under § 1983 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.” Bruner v. Baker, 506 F.3d 1021, 1025–
26 (10th Cir. 2007) (citation omitted). A defendant acts “under color of state law” when he

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“exercises[s] power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988)
(citation omitted). Thus, it is of no consequence how discriminatory or wrongful the actions a
plaintiff may describe; merely private conduct does not satisfy the “under color of” element and
therefore no § 1983 liability exists. See Brentwood Acad. v. Tennessee Secondary Athletic Ass’n,
531 U.S. 288, 294–96 (2001). Plaintiff’s claim against Defendant Collins fails to show that she
was acting under color of state law.
C. Judicial Immunity
Plaintiff also names as a defendant the state court judge presiding over his child support
case.
1. Eleventh Amendment Immunity
Although it is unclear whether Plaintiff sues the state court judge in her official capacity,
a claim against state officials for monetary damages is barred by sovereign immunity. An
official-capacity suit is another way of pleading an action against the governmental entity itself.
Kentucky v. Graham, 473 U.S. 159, 165 (1985). “When a suit alleges a claim against a state
official in his official capacity, the real party in interest in the case is the state, and the state may
raise the defense of sovereign immunity under the Eleventh Amendment.” Callahan v. Poppell,
471 F.3d 1155, 1158 (10th Cir. 2006) (quotation omitted). Sovereign immunity generally bars
actions in federal court for damages against state officials acting in their official capacities.
Harris v. Owens, 264 F.3d 1282, 1289 (10th Cir. 2001). It is well established that Congress did
not abrogate the states’ sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S.
332, 338–45 (1979); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002).

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The bar also applies when the entity is an arm or instrumentality of a state. Sturdevant v.
Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000).

In determining whether an entity is an

instrumentality or arm of the state for purposes of Eleventh Amendment immunity, the Tenth
Circuit has established a two-party inquiry, requiring an examination of: (1) “the degree of
autonomy given to the agency, as determined by the characterization of the agency by state law
and the extent of guidance and control exercised by the state,” and (2) “the extent of financing
the agency receives independent of the state treasury and its ability to provide for its own
financing.” Duke v. Grady Mun. Sch., 127 F.3d 972, 974 (10th Cir. 1997) (citations omitted).
“The governmental entity is immune from suit if the money judgment sought is to be satisfied
out of the state treasury.” Id. (citations omitted).
Kansas state law clearly characterizes the district courts as arms of the state
government—part of a unified judicial branch along with the Kansas Supreme Court and Kansas
Court of Appeals. Wilkins v. Skiles, No. 02–3190, 2005 WL 627962, at *4 (D. Kan. March 4,
2005); see generally, KAN. CONST. art 3. The legislature defines “state agency,” for purposes
of the state workers’ compensation fund, as “the state, or any department or agency of the state,
but not including . . . the district court with regard to district court officers or employees whose
total salary is payable by counties.” K.S.A. 44–575(a). The only court personnel who are not
included in the judicial personnel pay system, and are instead paid by the county, are county
auditors, coroners, court trustees and personnel in each trustee’s office, and personnel
performing services in adult or juvenile detention or correctional facilities. K.S.A. 20–162(a),
(b). District court judges are state officials. Schroeder v. Kochanowski, 311 F. Supp. 2d 1241,
1256 (D. Kan. 2004), see also Sigg v. Dist. Court of Allen Cty., Kan., No. 11-2625-JTM, 2012

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WL 941144, at *4 (D. Kan. March 20, 2012) (district court judge is a state official and official
capacity claims against judge for money damages are barred).
Any official capacity claim against the state official for monetary damages is barred by
sovereign immunity.

Furthermore, state officers acting in their official capacity are not

considered “persons” against whom a claim for damages can be brought under § 1983. Will v.
Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).
B. Personal Immunity
The defendant state court judge also enjoys personal immunity. “Personal immunities . . .
are immunities derived from common law which attach to certain governmental officials in order
that they not be inhibited from ‘proper performance of their duties.’” Russ v. Uppah, 972 F.2d
300, 302–03 (10th Cir. 1992) (citing Forrester v. White, 484 U.S. 219, 223, 225 (1988)).
Plaintiff’s claim against the state court judge should be dismissed on the basis of judicial
immunity. A state judge is absolutely immune from § 1983 liability except when the judge acts
“in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)
(articulating broad immunity rule that a “judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in excess of his authority . . . .”); Hunt
v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). Only actions taken outside a judge’s judicial
capacity will deprive the judge of judicial immunity. Stump, 435 U.S. at 356–57. Plaintiff
alleges no facts whatsoever to suggest that the state court judge was acting outside her judicial
capacities.
The Court must dismiss a case if it finds that the plaintiff is seeking monetary relief
against a defendant “who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(iii); see also
28 U.S.C. § 1915A(b).

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D. State Court Proceedings
Plaintiff’s allegations undermining the validity of his confinement on state charges are
barred absent a showing that the basis for his state confinement has been overturned or
invalidated. Heck v. Humphrey, 512 U.S. 477, 486–87 (2009). To the extent Plaintiff seeks to
undermine or invalidate any state charges that may remain pending against him, habeas corpus is
the sole available remedy after first exhausting state court remedies. Preiser v. Rodriguez, 411
U.S. 475, 476 – 77, 500 (1973). Generally, federal habeas corpus relief is not available to a state
prisoner unless all state court remedies were exhausted before the petition was filed. 28 U.S.C.
§ 2254(b)(1)(A); see also Wainwright v. Sykes, 433 U.S. 72, 80–81 (1977). “States should have
the first opportunity to address and correct alleged violations of state prisoner’s federal rights.”
Coleman v. Thompson, 501 U.S. 722, 731 (1991) (explaining that the exhaustion requirement is
“grounded in principles of comity”). “A state prisoner must give the state courts an opportunity
to act on his claims before he presents those claims to a federal court in a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). It is the petitioner’s burden to prove that he
fully exhausted all state court remedies prior to filing his petition in federal court. Generally, the
exhaustion prerequisite is not satisfied unless all claims asserted have been presented by
“invoking one complete round of the State’s established appellate review process.” Id. at 845.
This means that each claim must have been “properly presented” as a federal constitutional issue
“to the highest state court, either by direct review of the conviction or in a post-conviction
attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). It has long

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been established that a § 2254 petition containing federal claims which have not been exhausted
in state court must be dismissed. See Rose v. Lundy, 455 U.S. 509, 513-20 (1982).
To the extent Plaintiff’s state court proceedings are still pending, the abstention doctrine
generally precludes action by this Court on Plaintiff’s federal claims. Under Younger v. Harris,
401 U.S. 37 (1971), this court must abstain from review of such proceedings.

Younger

abstention is jurisdictional. D.L. v. Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir.
2004) (citing Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 100 n. 3 (1998)). According to
the Supreme Court, federal courts are to avoid interference with ongoing state proceedings if the
state court provides an adequate forum to present any federal constitutional challenges. Younger,
401 U.S. at 45, 49.
The Younger abstention doctrine, if applied, obligates the Court to dismiss an action in
favor of an ongoing state proceeding. Weitzel v. Div. of Occupational & Prof’l Licensing, 240
F.3d 871, 875 (10th Cir. 2001); Amanatullah v. Colorado Bd. of Med. Exam’rs, 187 F.3d 1160,
1163 (10th Cir.1999)). Under Younger, “[e]ven when a federal court would otherwise have
jurisdiction to hear a claim, the court may be obliged to abstain when a federal court judgment on
the claim would interfere with an ongoing state proceeding implicating important state interests.”
Unified Sch. Dist. No. 497, 392 F.3d at 1227–28. Therefore, this Court must abstain from
exercising jurisdiction if the following conditions are met:
(1) there is an ongoing state criminal, civil, or administrative
proceeding, (2) the state court provides an adequate forum to hear
the claims raised in the federal complaint, and (3) the state
proceedings involve important state interests, matters which
traditionally look to state law for their resolution or implicate
separately articulated state policies.
Weitzel, 240 F.3d at 875.

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IV. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety. Plaintiff is therefore required to show good cause why his Complaint (Doc. 1) should
not be dismissed for the reasons stated herein. The failure to file a timely, specific response
waives de novo review by the District Judge, see Thomas v. Arn, 474 U.S. 140, 148–53 (1985),
and also waives appellate review of both factual and legal questions. Makin v. Col. Dept. of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
August 24, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff’s Complaint (Doc. 1) should not be dismissed for the
reasons stated herein.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 25th day of July, 2017.

s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge

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