Hightower v. Kansas, State of et al

Filing 7

MEMORANDUM AND ORDER ENTERED: This action is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 08/11/17. 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.

MEMORANDUM AND ORDER
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
Yolanda Collins. Plaintiff challenges the state court judge’s denial of his two motions for

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paternity testing and Collins’ actions in allowing him to go to jail and in allowing garnishment of
his checks.
On July 25, 2017, Magistrate Judge Waxse entered a Notice and Order to Show Cause
(Doc. 5) (“NOSC”), ordering Plaintiff to show cause why this matter should not be dismissed
due to the deficiencies set forth in the NOSC. The NOSC found that the named defendants are
either not persons or state actors under § 1983, or they enjoy immunity from suit. 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). The NOSC also found that 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); and 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). Furthermore, 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. See Younger v. Harris, 401 U.S. 37 (1971).
Plaintiff filed a Response (Doc. 6) to the NOSC. In his Response, Plaintiff provides
additional factual allegations, but fails to cure the deficiencies set forth in the NOSC. 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).
Accordingly,

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IT IS THEREFORE ORDERED BY THE COURT that this action is dismissed for
failure to state a claim.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 11th day of August, 2017.

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

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