Jackson v. Burdette et al

Filing 28

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's Motion for Order to Disqualify the Respondent 20 is denied. Plaintiff's Motion to Leave and Amend 24 is denied. Plaintiff's Motions to Compel 25 & 26 are deni ed without prejudice. Defendants' Motion to Dismiss 16 is denied without prejudice. Plaintiff's Motion to Amend Complaint 23 is granted. Plaintiff is granted until December 17, 2018, in which to submit a proper amended complaint on t he court-approved form. Plaintiff is granted until December 17, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's claims should not be dismissed for the reasons set forth in this Memorandum and Order and Order to Show Cause. Signed by U.S. Senior District Judge Sam A. Crow on 11/16/18. Mailed to pro se party Marcus Shamillyon Jackson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARCUS SHAMILLYON JACKSON,
Plaintiff,
v.

CASE NO. 17-3082-SAC

J. DEXTER BURDETTE, et al.,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
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.) This matter is before the Court
on Plaintiff’s Motion for Order to Disqualify the Respondent (Doc. 20); Motion to Amend
Complaint (Doc. 23); Motion to Leave and Amend (Doc. 24); and Motions to Compel (Docs. 25,
26).
I. Background
Plaintiff’s allegations in his original Complaint (Doc. 1) relate to his state criminal
proceedings, and include claims of malicious prosecution, ineffective assistance of counsel, illegal
detainment and judicial misconduct. Plaintiff claims he was booked into the Wyandotte County
Adult Detention Center on October 8, 2015, on a 48-hour hold. Plaintiff alleges that Defendant
Detective Fithian placed the hold on Plaintiff due to a lack of criminal evidence and Plaintiff’s
request to have a lawyer present prior to questioning. Plaintiff claims that although the 48-hour
hold expired on October 10, 2015, Plaintiff continued to be held until his arrest on October 13,
2015. Plaintiff’s seeks money damages and to have his state criminal charges dismissed with
prejudice.
On December 22, 2017, the Court entered a Memorandum and Order and Order to Show
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Cause (Doc. 5) (“MOSC”). The MOSC gave Plaintiff until January 22, 2018, to show cause why
multiple defendants should not be dismissed from the case. Plaintiff failed to respond to the
MOSC by the deadline and the Court entered an Order (Doc. 8) dismissing the defendants set forth
in the MOSC. The Court held that the proper processing of Plaintiff’s claims against the
remaining Defendants could not be achieved without additional information from appropriate
officials of Wyandotte County, Kansas. The Court ordered those officials to prepare a Martinez
Report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d
1106 (10th Cir. 1991).
The remaining Defendants filed the Martinez Report on April 20, 2018. (Doc. 13.) On
May 30, 2018, the Defendants filed a Motion to Dismiss (Docs. 16, 17), alleging that although the
arrest warrant was filed on October 13, 2015, it was actually signed by the judge on October 9,
2015. Plaintiff has now filed two motions to amend his Complaint.
II. Motion to Leave and Amend (Doc. 24)
Plaintiff filed a Motion to Leave and Amend (Doc. 24), stating that he is seeking to bring a
Federal Tort Claim under 28 U.S.C. § 1343(1)(2)(3) in addition to his 42 U.S.C. § 1983 claims.
The Court finds that Plaintiff’s motion to amend should be denied on the grounds of futility. See
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (leave to amend a complaint may be
denied on the basis of futility among other reasons).
Petitioner’s proposed amendment to assert a claim under the Federal Tort Claims Act
(“FTCA”) would be futile because Plaintiff has not named any federal defendants. The FTCA, 28
U.S.C. §§ 1346(b)(1), 2671–2680, “allows the United States to be sued for claims arising out of
negligent or wrongful acts or omissions of its employees, when such employees are acting within
the scope of their duties.” Ingram v. Faruque, 728 F.3d 1239, 1245 (10th Cir. 2013) (citing

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§ 1346(b)(1)). “The United States is the only proper defendant in an FTCA action.” Smith, 561
F.3d at 1099 (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001)); see Hui, 559
U.S. at 801 (the FTCA “generally authorizes substitution of the United States as the defendant.”).
The FTCA “provides the exclusive avenue to assert a claim sounding in tort against the United
States.” Franklin Sav. Corp., In re, 385 F.3d 1279, 1286 (10th Cir. 2004), cert. denied, 546 U.S.
814 (2005) (citing 28 U.S.C. § 2679(a), which provides that “the FTCA remedy is ‘exclusive’ for
all ‘claims which are cognizable under section 1346(b)’”).

Furthermore, the FTCA has

procedural and jurisdictional requirements. See Staggs v. U.S. ex rel. Dep’t of Health and Human
Servs., 425 F.3d 881, 885 (10th Cir. 2005) (stating that the “FTCA’s presentation requirements are
jurisdictional and cannot be waived”) (citation omitted). Therefore, exhaustion of administrative
remedies is a prerequisite to suit under the FTCA, and courts lack jurisdiction over FTCA claims
not presented to the appropriate federal agency. See 28 U.S.C. § 2675(a); Greenlee v. U.S. Postal
Serv., 247 F. App’x 953, 954–55 (10th Cir. 2007).
III. Motion to Leave and Amend Complaint (Doc. 23)
Plaintiff also filed a motion for leave to amend his Complaint (Doc. 23), seeking to specify
with detail that Defendant Fithian directly lied upon the affidavit supporting the arrest warrant.
Rule 15(a)(2) provides that after a responsive pleading has been filed, “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave” and “[t]he court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Defendants have
not filed a response in opposition to the motion to amend. The Court will grant the motion to
amend.
Plaintiff’s proposed Amended Complaint at Doc. 23–1, however, is deficient for several
reasons. Plaintiff has failed to submit his Amended Complaint on the court-approved form, has

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failed to name the defendants in the caption, and has failed to request any form of relief. The
Court will give Plaintiff an opportunity to resubmit his Amended Complaint on the court-approved
form. Plaintiff should also be mindful of the Court’s prior rulings when he asserts his request for
relief. In the MOSC, the Court noted that:
To the extent Plaintiff challenges the validity of his sentence or
conviction, his federal claim must be presented in habeas corpus.
However, a petition for habeas corpus is premature until Plaintiff
has exhausted available state court remedies. 1 See 28 U.S.C.
§ 2254(b)(1)(A) (requiring exhaustion of available state court
remedies). Likewise, before Plaintiff may proceed in a federal
civil action for monetary damages based upon an invalid conviction
or sentence, he must show that his conviction or sentence has been
overturned, reversed, or otherwise called into question. Heck v.
Humphrey, 512 U.S. 477 (1994).
(Doc. 5, at 5.) Similarly, in Plaintiff’s prior habeas action before this Court, the Court dismissed
the petition, stating that:
The court informed petitioner in its screening order that under
federal statutory law and United States Supreme Court precedent, 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,” federal habeas corpus relief is not available to a state
prisoner unless all state court remedies were exhausted before the
petition was filed, and petitioner has the burden of proving
exhaustion.
Jackson v. Ash, Case No. 16-3124-SAC (D. Kan. July 12, 2016) (Doc. 8, at 2).
Plaintiff also alleged in his original Complaint that pursuant to a hearing on his motion to
suppress in his state court criminal proceedings, the judge “ruled there was sufficient evidence in
the affidavit and warrant.” (Doc. 1, at 6.) The Court’s ruling on the motion to suppress may
require the application of collateral estoppel upon final adjudication. “Collateral estoppel, or
issue preclusion, is available in actions under § 1983.” Williams v. Henderson, 626 F. App’x 761,

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On-line records maintained by Wyandotte County District Court reflect that Plaintiff was sentenced on December 1,
2017, in Case No. 2015-CR-000914.

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763 (10th Cir. 2015) (unpublished) (citing Allen v. McCurry, 449 U.S. 90 (1980)). “The doctrine
applies when (1) the issue previously decided is identical with the one presented in the current
action; (2) the prior action was finally adjudicated on the merits; (3) the party against whom the
doctrine is invoked was a party or in privity with a party to the prior litigation, and (4) the party
against whom the doctrine is invoked had a full and fair opportunity to litigate the issue in the prior
action.” Id. (citing Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009)); see Sibert v. Phelan,
901 F. Supp. 183, 187 (D.N.J. 1995) (finding issue preclusion appropriate where judge previously
decided issue on suppression motion); see also Searing v. Hayes, 684 F.2d 694 (10th Cir. 1982);
see also Jackson v. Loftis, 189 F. App’x 775, 779, n.3 (10th Cir. 2006) (unpublished) (noting that
many cases reflect the basic notion that a conviction, by plea or trial, that establishes probable
cause for arrest is conclusive on the issue in later civil rights litigation).
Plaintiff should show cause why his current Amended Complaint should not be dismissed
for the reason set forth herein. Plaintiff is also given an opportunity to file a proper amended
complaint on the court-approved form that cures the deficiencies noted herein. Defendants may
also respond to this order to show cause by the deadline set forth herein.
IV. Motion to Dismiss (Doc. 16)
Plaintiff has filed an Amended Complaint which supersedes his original Complaint.
Therefore, the Court will deny Defendants’ Motion to Dismiss, without prejudice to them refiling
the motion if a claim regarding the 48-hour hold survives screening pursuant to Plaintiff’s
Amended Complaint. It does not appear that Plaintiff is still pursuing this claim, but it is difficult
for the Court to determine in light of his failure to use the appropriate form.
V. Motion for an Order to Disqualify (Doc. 20)
Plaintiff alleged that he did not receive a timely copy of the Martinez Report and that he did

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not receive the motion to dismiss and memorandum in support in time to file an informed
response. (Doc. 18.) Plaintiff then filed a Motion for an Order to Disqualify the Respondent
Party Due to Fraud Upon the Court. (Doc. 20.) Plaintiff’s motion notes the discrepancy or delay
between the date on the certificate of service and the date he actually received pleadings. Plaintiff
filed a response (Doc. 19) noting that he was filing it without having reviewed the motion to
dismiss and memorandum in support. The Court entered an Order on June 15, 2018, directing the
clerk to provide Plaintiff with copies of the motion and memorandum and granting Plaintiff an
extension of time to July 9, 2018, to file a proper response. (Doc. 21.) Because the Court
granted Plaintiff an extension of time and provided him with copies of the pertinent documents, the
Court denies the motion to disqualify the respondent party due to alleged fraud upon the Court.
VI. Motions to Compel (Docs. 25, 26)
Plaintiff has filed two motions to compel discovery. Because Plaintiff’s complaints have
not survived screening, discovery is premature at this time. The Court denies the motions without
prejudice to Plaintiff refiling them in the event his amended complaint survives screening.
VII. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Amended Complaint should not be
dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete
and proper amended complaint upon court-approved forms that cures all the deficiencies discussed
herein.2

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In order to add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete
amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original
complaint, and instead completely supersedes it. Therefore, any claims or allegations not included in the amended
complaint are no longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the
amended complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including
those to be retained from the original complaint. Plaintiff must write the number of this case (18-3082-SAC) at the
top of the first page of his amended complaint and he must name every defendant in the caption of the amended
complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended
complaint, where he must allege facts describing the unconstitutional acts taken by each defendant including dates,

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IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Order to Disqualify the
Respondent (Doc. 20) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Leave and Amend (Doc. 24) is
denied.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Compel (Docs. 25, 26) are
denied without prejudice.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. 16) is denied
without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Complaint (Doc. 23) is
granted.
IT IS FURTHER ORDERED that Plaintiff is granted until December 17, 2018, in which
to submit a proper amended complaint on the court-approved form.
IT IS FURTHER ORDERED that Plaintiff is granted until December 17, 2018, in which
to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why
Plaintiff’s claims should not be dismissed for the reasons set forth in this Memorandum and Order
and Order to Show Cause.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated on this 16th day of November, 2018, in Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge
locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional
violation.

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