Kasel v. Kansas, State of

Filing 4

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted untilOctober 27, 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 U.S. Senior District Judge Sam A. Crow on 09/27/17. Mailed to pro se party Seth Michael Kasel by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SETH MICHAEL KASEL,
Plaintiff,
v.

CASE NO. 17-3076-SAC-DJW

STATE OF KANSAS,
Defendant.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Seth Michael Kasel, 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. The Court
granted Plaintiff leave to proceed in forma pauperis. (Doc. 3.) Plaintiff is detained at the
Sedgwick County Detention Facility in Wichita, Kansas (“SCDF”). Plaintiff alleges that he is
fighting a registration case and the state has violated his rights “in a multitude of ways.” Plaintiff
alleges that his due process rights are being violated because he has not had a preliminary
hearing within fourteen days of his arrest or arraignment which occurred on January 9, 2017.
Plaintiff alleges that he is being detained unlawfully because he has been deemed a non-threat to
society by state psychologists.

Plaintiff alleges that the Kansas Offender Registration Act

(“KORA”) is harmful. Plaintiff names the State of Kansas as his sole defendant, and he seeks as

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damages “$100,000,000, relief from registry, and protection from retributive actions from the
courts and law enforcement.”
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
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a

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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
1. Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his administrative remedies prior to
filing a lawsuit in federal court regarding prison conditions. 42 U.S.C. § 1997e(a). Section
1997e(a) expressly provides:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
Id. This exhaustion requirement “is mandatory, and the district court [is] not authorized to
dispense with it.” Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir.
2003), cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010).1
While failure to exhaust is an affirmative defense rather than a pleading requirement, and a
plaintiff is not required to plead it in the complaint, when that failure is clear from materials filed
by plaintiff, the court may sua sponte require plaintiff to show that he has exhausted. See
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)(acknowledging district
courts may raise exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28
U.S.C. §§ 1915 and 1915A, and dismiss prisoner complaint for failure to state a claim if it is
clear from face of complaint that prisoner has not exhausted administrative remedies).
Plaintiff states in his Complaint that he filed a habeas corpus action which was denied.
(Doc. 1, at 5.) However, his habeas corpus petition challenged his 2010 conviction and 2012
sentences, not his current incarceration for failure to comply with the registration requirements.

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To satisfy this requirement, a prisoner must fully comply with the institution’s grievance procedures. Jones v.
Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90 (2006); Little, 607 F.3d at 1249 (The “inmate
may only exhaust by properly following all the steps laid out in the prison system’s grievance procedures.”)(citing
Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance process but does not complete it is
barred from pursuing a § 1983 claim. . . .” Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
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See Kasel v. Kansas, Case No. 17-3077 (D. Kan. 2017). This action is subject to dismissal
because it appears from the face of the Complaint that Plaintiff failed to fully and properly
exhaust all available prison administrative remedies on his claim prior to filing this action in
federal court. Because failure to exhaust appears from the face of the Complaint, Plaintiff is
required to show that he has fully and properly exhausted his administrative remedies.
2. Defendants
Plaintiff’s Complaint names the State of Kansas as defendant. The State and its agencies
are not “persons” subject to suit for money damages under § 1983. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 66, 71 (1989) (neither state nor state agency is a “person” which can
be sued under § 1983); Davis v. Bruce, 215 F.R.D. 612, 618 (D. Kan. 2003), aff’d in relevant
part, 129 F. App’x 406, 408 (10th Cir. 2005). Plaintiff’s request for money damages against the
State of Kansas is subject to dismissal.
3. Younger Abstention
The Court may be prohibited from hearing the Plaintiff’s claim under Younger v. Harris,
401 U.S. 37, 45 (1971). “The Younger doctrine requires a federal court to abstain from hearing a
case where . . . (1) state judicial proceedings are ongoing; (2) [that] implicate an important state
interest; and (3) the state proceedings offer an adequate opportunity to litigate federal
constitutional issues.” Buck v. Myers, 244 F. App’x 193, 197 (10th Cir. 2007) (unpublished)
(citing Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003); see also
Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). “Once
these three conditions are met, Younger abstention is non-discretionary and, absent extraordinary
circumstances, a district court is required to abstain.” Buck, 244 F. App’x at 197 (citing Crown
Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003)).

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It appears as though the first condition is met. Plaintiff’s state court criminal proceedings
based on his failure to register are ongoing. An online Kansas District Court Records Search
indicates that the last docket entry in the state court proceedings is a Trial Notice Continuance
entered on September 11, 2017.

The second condition would be met because Kansas

undoubtedly has an important interest in enforcing its criminal laws through criminal
proceedings in the state’s courts. In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (“[S]tate
control over criminal justice [is] a lynchpin in the unique balance of interests” described as “Our
Federalism.”) (citing Younger, 401 U.S. at 44). Likewise, the third condition would be met
because Kansas courts provide Plaintiff with an adequate forum to litigate his constitutional
claims by way of pretrial proceedings, trial, and direct appeal after conviction and sentence, as
well as post-conviction remedies. See Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993)
(“[F]ederal courts should abstain from the exercise of . . . jurisdiction if the issues raised . . . may
be resolved either by trial on the merits in the state court or by other [available] state
procedures.”) (quotation omitted); see Robb v. Connolly, 111 U.S. 624, 637 (1984) (state courts
have obligation ‘to guard, enforce, and protect every right granted or secured by the constitution
of the United States . . . .’”); Steffel v. Thompson, 415 U.S. 452, 460–61 (1974) (pendant state
proceeding, in all but unusual cases, would provide federal plaintiff with necessary vehicle for
vindicating constitutional rights).
“[T]he Younger doctrine extends to federal claims for monetary relief when a judgment
for the plaintiff would have preclusive effects on a pending state-court proceeding.” D.L. v.
Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); see Buck, 244 F. App’x at 198.
“[I]t is the plaintiff’s ‘heavy burden’ to overcome the bar of Younger abstention.” Phelps v.
Hamilton, 122 F.3d 885, 889 (10th Cir. 1997).

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In responding to this Notice and Order to Show Cause, Plaintiff should clarify whether or
not state criminal proceedings are ongoing. If Plaintiff has been convicted and a judgment on
Plaintiff’s claim in this case would necessarily imply the invalidity of that conviction, the claim
may be barred by Heck. In Heck v. Humphrey, the United States Supreme Court held that when
a state prisoner seeks damages in a § 1983 action, the district court must consider the following:
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.
Heck v. Humphrey, 512 U.S. 477, 487 (1994). In Heck, the Supreme Court held that a § 1983
damages claim that necessarily implicates the validity of the plaintiff’s conviction or sentence is
not cognizable unless and until the conviction or sentence is overturned, either on appeal, in a
collateral proceeding, or by executive order. Id. at 486–87.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
October 27, 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 Topeka, Kansas on this 27th day of September, 2017.

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

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