Jackson v. Burdette et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's request for appointment of counsel is denied without prejudice. Plaintiff's request to waive the initial partial filing fee 4 is granted. Plaintiff is granted until Janu ary 22, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's claims against Defendants Burdette, Zimmerman, Serra, Gordman, Dupree, Floyd, Penland, Alig, Birmingham, Mellor, S mith, and Williams should not be dismissed. The report required herein shall be filed no later than sixty (60) days from the date of this Order. Officials responsible for the operation of the Wyandotte County Detention Center are directed to underta ke a review of the subject matter of the Complaint. The clerk of court shall enter the Wyandotte County Sheriff as an interested party on the docket for the limited purpose of preparing the Martinez Report ordered herein. Upon the filing of that report, the Wyandotte County Sheriff may move for termination from this action. Signed by U.S. Senior District Judge Sam A. Crow on 12/22/17. 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 Marcus Shamillyon Jackson is hereby required to show good cause, in writing, to
the Honorable Sam A. Crow, United States District Judge, why his claims against Defendants
Burdette, Zimmerman, Serra, Gordman, Dupree, Floyd, Penland, Alig, Birmingham, Mellor,
Smith, and Williams, should not be dismissed due to the deficiencies in Plaintiff’s Complaint that
are discussed herein. The Court finds that proper processing of Plaintiff’s claims against the
remaining Defendants cannot be achieved without additional information from appropriate
officials of Wyandotte County, Kansas.
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, and assessed an initial partial filing fee.
(Doc. 3.) Plaintiff filed a response (Doc. 4) indicating that he does not have the funds to pay the
initial partial filing fee. The Court will treat the response as a request to waive the initial partial
filing fee and will grant the request.
Plaintiff’s allegations in his Complaint relate to his state criminal proceedings, and include
claims of malicious prosecution, ineffective assistance of counsel, illegal detainment and judicial
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misconduct. Plaintiff names as Defendants: Wyandotte County District Court Judges J. Dexter
Burdette, Fred Zimmerman, and Robert Serra; Wyandotte County Prosecutors Jerome Gordman,
Mark Dupree, James Antwone Floyd, Thomas Penland, and Susan Alig; defense attorneys Mark
Birmingham, Elizabeth Mellor, and Jacob N. Smith; Wyandotte County Sheriff Donald Ash;
Wyandotte County Jail Warden Jeffrey Fewell; Wyandotte County Unified Government; Kansas
City Police Department Detective (fnu) Fithian; Amazon Supervisor Carl Levert Williams; and
(fnu) (lnu) Wyandotte County Sheriff’s Department Deputy. Plaintiff’s seeks money damages
and to have his state criminal charges dismissed with prejudice.
Plaintiff claims he was booked into the Wyandotte County Adult Detention Center on
October 8, 2015, on a 48-hour hold. 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.
Although the 48-hour hold expired on October 10, 2015, Plaintiff continued to be held until his
arrest on October 13, 2015.
Plaintiff alleges in his Complaint that in his state criminal proceedings Judge Burdette
failed to replace his ineffective defense counsel, Mark Birmingham, and denied him a fair trial.
Plaintiff also sets forth errors allegedly committed by defense attorney Birmingham, and claims
they had an irreconcilable conflict. Plaintiff also alleges that defense attorneys Elizabeth Mellor
and Jacob N. Smith failed to properly defend him. Plaintiff claims that Judge Robert Serra denied
his oral motion to dismiss the charges against Plaintiff. Plaintiff claims that Detective Fithian
unconstitutionally arrested Plaintiff. Plaintiff claims that Judge Fred Zimmerman “negligently
upheld [Plaintiff’s] constitutional rights after he observed in court that something was wrong with
the documentation relating to the arrest warrant.
Plaintiff claims that Sheriff Donald Ash, Warden Jeffrey Fewell, and an unknown deputy

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at Wyandotte County failed to release him from jail after completion of his 48-hour hold.
Plaintiff’s claims against Amazon Supervisor Carl Levert Williams, a witness in Plaintiff’s
criminal case, are related to his “deceiving and untrue incriminations to authorities.” Plaintiff
alleges that all the named prosecutors allowed the unconstitutional injustice to continue.
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,

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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
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

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plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
1. Request to have His State Criminal Charges Dismissed
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).
2. Request for Monetary Damages
A. Eleventh Amendment Immunity
Although it is unclear whether Plaintiff sues any of the defendants in their 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

1

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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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).
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.

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2004), see also Sigg v. Dist. Court of Allen Cty., Kan., No. 11-2625-JTM, 2012 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 a 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). Any claim for monetary damages against the
state officials in their official capacities is subject to dismissal as barred by sovereign immunity.
B. Wyandotte County Prosecutors Jerome Gordman, Mark Dupree, James
Antwone Floyd, Thomas Penland, and Susan Alig
Plaintiff’s claims against the Wyandotte County prosecutors fail on the ground of
prosecutorial immunity. Prosecutors are absolutely immune from liability for damages in actions
asserted against them for actions taken “in initiating a prosecution and in presenting the State’s
case.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Plaintiff’s claims concerning his criminal
case fall squarely within the prosecutorial function. Plaintiff is directed to show cause why his
claims against the Wyandotte County prosecutors should not be dismissed based on prosecutorial
immunity.
C. Criminal Defense Attorneys Mark Birmingham, Elizabeth Mellor, and Jacob N.
Smith
Plaintiff has not shown that his state court defense attorneys were acting under color of
state law as required under § 1983. See Polk Cty. v. Dodson, 454 U.S. 312, 318–19, 321–23
(1981) (assigned public defender is ordinarily not considered a state actor because their conduct as
legal advocates is controlled by professional standards independent of the administrative direction
of a supervisor); see also Vermont v. Brillon, 556 U.S. 81, 91 (2009); Dunn v. Harper County, 520

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Fed. Appx. 723, 725-26, 2013 WL 1363797 at *2 (10th Cir. Apr. 5, 2013)(“[I]t is well established
that neither private attorneys nor public defenders act under color of state law for purposes of
§ 1983 when performing traditional functions as counsel to a criminal defendant.” (citations
omitted)).

A criminal defense attorney does not act under color of state even when the

representation was inadequate. Briscoe v. LaHue, 460 U.S. 325, 330 n.6 (1983). Plaintiff’s
claims against his defense attorneys are subject to dismissal for failure to state a claim.
D. Wyandotte County District Court Judges J. Dexter Burdette, Fred Zimmerman,
and Robert Serra
The Wyandotte County District Court Judges are entitled to 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 judges 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 any of the state court judges were acting outside their
judicial capacities.

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E. Amazon Supervisor Carl Levert Williams
Plaintiff has failed to allege that Defendant Williams violated Plaintiff’s constitutional
rights or that he acted under color of state law. Defendant Williams, a witness in Plaintiff’s
criminal case, is entitled to witness immunity. The Supreme Court has held that:
There are two reasons why § 1983 does not allow recovery of
damages against a private party for testimony in a judicial
proceeding. First, § 1983 does not create a remedy for all conduct
that may result in violation of “rights, privileges, or immunities
secured by the Constitution and laws.” Its reach is limited to actions
taken “under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory . . . .” It is beyond question that,
when a private party gives testimony in open court in a criminal
trial, that act is not performed “under color of law.” Second, since
1951, when this Court decided Tenney v. Brandhove, 341 U.S. 367,
71 S. Ct. 783, 95 L. Ed. 1019, it has been settled that the
all-encompassing language of § 1983, referring to “[e]very person”
who, under color of law, deprives another of federal constitutional
or statutory rights, is not to be taken literally.
Briscoe v. LaHue, 460 U.S. 325, 329–30 (1983) (footnotes omitted); see also Rehberg v. Paulk,
566 U.S. 356 (2012) (a trial witness sued under § 1983 enjoys absolute immunity from any claim
based on his testimony). “Witness immunity applies even to a witness that gave perjured
testimony at a criminal trial.” Grigsby v. Lemuz, 2015 WL 10945000, at *2 (D. Kan. Feb. 12,
2015) (citing Briscoe, 460 U.S. at 335–36)). Plaintiff’s claim against Defendant Williams is
subject to dismissal for failure to state a claim.
F. Defendants Wyandotte County Sheriff Donald Ash; Wyandotte County Jail
Warden Jeffrey Fewell; Wyandotte County Unified Government; Kansas City Police
Department Detective (fnu) Fithian; and (fnu) (lnu) Wyandotte County Sheriff’s
Department Deputy
Plaintiff alleges that Defendants held Plaintiff for over 48 hours before finding probable
cause. “[T]he Fourth Amendment’s shield against unreasonable seizures requires a prompt
judicial determination of probably cause following an arrest made without a warrant and ensuing

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detention.” Powell v. Nevada, 511 U.S. 79, 80 (1994). Prompt generally means “within 48
hours of the warrantless arrest; absent extraordinary circumstances, a longer delay violates the
Fourth Amendment.” Id. (citing County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)).
Recognizing that some delays are inevitable, the United States Supreme Court has found
that, as a general matter, a plaintiff's Constitutional rights are not violated if a judicial
determination of probable cause is held within 48 hours of the arrest. County of Riverside, 500
U.S. at 56. Of course, there are exceptions. An individual's rights may be violated—even if the
hearing is held within 48 hours—if the individual can prove that his or her probable cause
determination was delayed unreasonably. Id. at 57. Unreasonable delay occurs when the delay
is for the purpose of gathering additional evidence to justify the arrest, motivated by ill will against
the individual, or delay for delay's sake. Id. (noting these exceptions and recognizing that delays
are reasonable when they are for “transporting arrested persons from one facility to another,
handling late-night bookings where no magistrate is readily available, obtaining the presence of an
arresting officer who may be busy processing other suspects or securing the premises of an arrest,
and other practical realities”).
Plaintiff was sentenced in state court on December 1, 2017. It is unclear whether Plaintiff
received credit for the time he spent in custody following his initial arrest—the same time he now
contends he was unlawfully detained. See Ewell v. Toney, 853 F.3d 911, 917 (7th Cir. 2017).
“[A] section 1983 plaintiff may not receive damages for time spent in custody, if that time was
credited to a valid and lawful sentence.” Id. (citations omitted). Plaintiff must show that he was
injured by the presumptively unreasonable delay of more than 48 hours. If Plaintiff is not entitled
to seek damages related to his detention, then there is no injury that a favorable decision by a
federal court may redress. See id. at 918 (where judge ultimately found probable cause and

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denied bail, plaintiff would not have been entitled to release any sooner, and because her time in
custody was later credited to a criminal sentence on another charge, plaintiff could not receive
damages for time spent in custody after her arrest).
The Court finds that proper processing of Plaintiff’s claim that he was held for more than
48 hours before a probable cause determination was made, cannot be achieved without additional
information from appropriate officials of Wyandotte County, Kansas. See Martinez v. Aaron, 570
F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
V. Requests for Appointment of Counsel
Plaintiff has noted on his Complaint a request for appointment of counsel. There is no
constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543,
547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether
to appoint counsel in a civil matter lies in the discretion of the district court. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the court that
there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v. Orman,
461 F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the
prisoner] in presenting his strongest possible case, [as] the same could be said in any case.”
Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to
investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).
The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a
colorable claim against a named defendant; (2) the issues are not complex; and (3) Plaintiff

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appears capable of adequately presenting facts and arguments. The Court denies Plaintiff’s
request for appointment of counsel in this case without prejudice to refiling a motion if Plaintiff’s
Amended Complaint survives screening.
IT IS THEREFORE ORDERED THAT Plaintiff’s request for appointment of counsel is
denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s request to waive the initial partial filing fee
(Doc. 4) is granted.
IT IS FURTHER ORDERED that Plaintiff is granted until January 22, 2018, in which
to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why
Plaintiff’s claims against Defendants Burdette, Zimmerman, Serra, Gordman, Dupree, Floyd,
Penland, Alig, Birmingham, Mellor, Smith, and Williams should not be dismissed for the reasons
stated herein.
IT IS FURTHER ORDERED THAT:
(1)

The report required herein shall be filed no later than sixty (60) days from the date of

this Order.
(2) Officials responsible for the operation of the Wyandotte County Detention Center are
directed to undertake a review of the subject matter of the Complaint:
(a)

to ascertain the facts and circumstances;

(b)

to consider whether any action can and should be taken by the institution
to resolve the subject matter of the Complaint;

(c)

to determine whether other like complaints, whether pending in this Court
or elsewhere, are related to this Complaint and should be considered
together.

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(3) Upon completion of the review, a written report shall be compiled which shall be filed
with the Court. Statements of all witnesses shall be in affidavit form. Copies of pertinent rules,
regulations, official documents and, wherever appropriate, the reports of medical or psychiatric
examinations shall be included in the written report. Any tapes of the incident underlying
Plaintiff’s claims shall also be included.
(4) Authorization is granted to the appropriate officials of Wyandotte County, Kansas, to
interview all witnesses having knowledge of the facts including Plaintiff.
(5) No answer or motion addressed to the Complaint shall be filed until the Martinez
Report requested herein has been prepared and filed.
(6) Discovery by Plaintiff shall not commence until Plaintiff has received and reviewed
Defendant’s answer or response to the Complaint and the report required herein. This action is
exempted from the requirements imposed under Fed. R. Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the clerk of court shall enter the Wyandotte County
Sheriff as an interested party on the docket for the limited purpose of preparing the Martinez
Report ordered herein. Upon the filing of that report, the Wyandotte County Sheriff may move
for termination from this action.
Copies of this Order shall be transmitted to Plaintiff and to the Sheriff of Wyandotte
County, Kansas.
IT IS SO ORDERED.
Dated on this 22nd day of December, 2017, in Topeka, Kansas.

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

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