Eikenberry (ID 89846) v. Seward County, Kansas et al

Filing 10

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including November 17, 2017, in which to show good cause, in writing, why Plaintiff's complaint should not be dismissed. Plaintiff's motion to appoint counsel 3 is denied without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 10/17/17. Mailed to pro se party Michael Wayne Eikenberry by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL WAYNE EIKENBERRY,
Plaintiff,
v.

CASE NO.17-3150-SAC-DJW

SEWARD COUNTY, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff

Michael

Wayne

Eikenberry,

a

state

prisoner

appearing pro se, brings this 42 U.S.C. § 1983 civil rights
complaint.

For

the

reasons

discussed

below,

Plaintiff

is

ordered to show cause why his complaint should not be dismissed.
I.

Nature of the Matter before the Court
Plaintiff’s complaint (Doc. #6) is based on the following

allegations.

An acquaintance of Plaintiff’s, Tom Miller, showed

up at Plaintiff’s house sometime between 1:30 and 3:00 a.m. on
August

17,

2013.

Mr.

Miller

was

drunk

and

passed

out.

Plaintiff went to bed around 7:00 a.m., then woke up around
11:00 a.m. and went to work.

When he returned at about 6:30

p.m., he attempted to awaken Mr. Miller.

He was unsuccessful

and noticed that Mr. Miller was breathing strangely.
1

Plaintiff

called 911.

Paramedics arrived around 8:00 p.m., along with

Defendant Keating, a deputy sheriff.

Defendant Keating did a

“protective sweep” of Plaintiff’s home, and then the paramedics
began examining Mr. Miller.
him in the ambulance.

When he did not react, they loaded

After the ambulance and Defendant Keating

left, Plaintiff went to sleep around 11:00 p.m.
Defendants
arrived

at

searching
They

and

Plaintiff’s
Plaintiff’s

claim

without

Smalls

to

any

Sellars,

house

around

outbuildings,

have

repeatedly

response.

also
12:30

a.m.

on

Keating

sheriffs,
They

began

trash

can.

Plaintiff’s

vehicles,

knocked

Defendant

deputy

door

and

obtained

warrant signed by Judge Tom Webb at 2:48 a.m.

a

search

Defendants Ward,

Gnat, and Roehr arrived at Plaintiff’s house with the search
warrant sometime between 3:00 a.m. and 4:00 a.m. on August 18,
2013.

They claim to have again knocked and gotten no response.

Defendant

Roehr

proceeded

to

use

a

battering

ram

to

open

Plaintiff’s front door.
Upon
Defendants
violently
Smalls,

entering
Roehr

and

attacked

Keating

and

and

finding

Ward

him

pulled

without

Gnat

Plaintiff
Plaintiff

provocation

pointed

their

in

bed

out

of

while

weapons

asleep,
bed

and

Defendants
at

him

and

Defendants Larue and Hawkins, special agents with the Kansas
Bureau

of

Investigation,

observed.

Plaintiff

alleges

the

defendants beat him because they were told to create injuries so
2

it

would

appear

he

had

been

fighting

with

Mr.

Miller.

Apparently, all of these defendants left Plaintiff’s house by
4:18 a.m.
At approximately 9:49 a.m. on August 18, 2013, Defendants
Larue

and

Hawkins

authorizing

the

Plaintiff.

returned

collection

They

took

with

of

another

blood

Plaintiff

to

and
the

search

urine

warrant

samples

ambulance

from

garage

in

Liberal, Kansas, where they took samples, as well as photographs
of

Plaintiff

after

making

him

remove

all

of

his

clothing.

Plaintiff states the warrant did not authorize a strip search or
photographs.
Plaintiff
prosecutor

for

also

alleges

Seward

that

Defendant

in

conspiracy

County,

Koehn,
with

special

the

other

defendants, suppressed hospital reports showing Mr. Miller had
no trauma or signs of battery and concealed or destroyed nine
(9) toxicology reports, the autopsy photos, and photos of Mr.
Miller taken at the hospital.

Plaintiff also claims Defendant

Koehn prevented witnesses from testifying at his criminal trial
and, along with Defendant Peterson, Coroner of Seward County,
Defendant Larue, John Doe, and other defendants, manufactured
false inculpatory evidence, including the injuries inflicted on
Plaintiff during execution of the search warrant, evidence of
fractures of Mr. Miller’s skull, false affidavits, false DNA
evidence that was not even human, and altered photographs, and
3

broke into Plaintiff’s home to plant items in a file of evidence
produced
Defendant

by

the

Koehn

prosecution.
altered

the

Plaintiff

trial

further

transcripts

and

alleges
secretly

introduced evidence at trial.
Plaintiff contends all of these actions were in furtherance
of

a

conspiracy

defendants

named

to

frame

above

him,

included

which
his

in

addition

defense

to

attorney

the

and

an

unknown person who ordered the helicopter pilot transporting Mr.
Miller

between

hospitals

to

fly

slowly,

taking

almost

three

hours to fly 160 miles, so that Mr. Miller would die.
Plaintiff

brings

the

following

claims

in

his

53-page

complaint:
Count

I:

Illegal

search

and

seizure

and

conspiracy

asserted against Defendants Ward, Gnat, Roehr, Smalls, Sellars,
Keating, McVey, Larue, and Hawkins.
Count

II:

Excessive

force

asserted

against

Defendants

Ward, Gnat, Roehr, Keating, Smalls, and Larue.
Count III:
Roehr,

Gnat,

Conspiracy asserted against Defendants Ward,

McVey,

Keating,

Smalls,

Sellars,

Hawkins,

and

Larue.
Count IV:

Unauthorized strip search and taking of nude

photographs asserted against Defendants Hawkins and Larue.

4

Count

V:

Abusive

and

discriminatory

police

practices

asserted against Gnat, Ward, Roehr, Keating, Smalls, Sellars,
McVey, Larue, and Hawkins.
Count

VI:

Failure

to

train,

supervise,

and

discipline

asserted against Defendants Larue, Hawkins, Gnat, and Ward.
Count

VII:

Monell

liability

asserted

against

Defendant

Seward County based on its alleged policy for the execution of
search warrants.
Count

VIII:

Concealment

of

exculpatory

evidence

and

conspiracy asserted against Defendants Keating, Larue, Hawkins,
Peterson, Koehn, and Sellars.
Count

IX:

Manufacturing

false

inculpatory

evidence

and

conspiracy asserted against Defendants Peterson, Sellars, Gnat,
Ward, Roehr, McVey, Keating, Larue, Hawkins, Koehn, and John
Doe.
Count

X:

Fraudulent

concealment

asserted

against

Defendants Keating, Larue, Koehn, Peterson, and Gnat.
Kansas tort claims:

Assault and battery, negligence, gross

negligence, fraud, medical malpractice.
Common law obstruction of justice:

Asserted against all

defendants.
Plaintiff requests the following relief:

(1) a declaratory

judgment that Plaintiff did not receive a fair trial, that his
constitutional

rights

were

violated
5

by

the

execution

of

the

search

warrants,

the

creation

of

false

evidence,

and

the

destruction of evidence, and that Defendant Peterson committed
medical malpractice; (2) an injunction ordering the staff of
Lansing Correction Facility to perform CT scans of Plaintiff’s
shoulder,

knees,

and

neck,

and

an

injunction

disbarring

Defendant Koehn and relieving Defendant Peterson of his duties
as

Seward

County

Coroner;

(3)

compensatory

damages;

and

(4)

punitive damages.
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 employee of such entity to determine whether summary
dismissal is appropriate.

28 U.S.C. § 1915A(a).

Additionally,

with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,

the

Court

has

determine its sufficiency.

a

duty

to

screen

the

complaint

See 28 U.S.C. § 1915(e)(2).

to

Upon

completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a
defendant

who

is

immune

from

such

relief.

28

U.S.C.

§§

1915A(b), 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell

Atl.

Corp.

v.

Twombly,

550
6

U.S.

544,

570

(2007).

In

applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.

See

Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir. 2011).
While

a

pro

se

plaintiff’s

complaint

must

be

liberally

construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
status does not relieve the plaintiff of “the burden of alleging
sufficient facts on which a recognized legal claim could be
based.”
The

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Court

need

pleaded facts.”

not

accept

“mere

conclusions

characterizing

Bryson v. City of Edmond, 905 F.2d 1386, 1390

(10th Cir. 1990).

“[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

will

not

do.”

Twombly,

(internal quotation marks omitted).

550

U.S.

at

555

The complaint’s “factual

allegations must be enough to raise a right to relief above the
speculative

level”

and

plausible on its face.”

“to

state

a

claim

to

relief

that

is

Id. at 555, 570.

“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.”
7

West v.

Atkins, 487 U.S. 42, 48 (1988); Northington v. Jackson, 973 F.2d
1518, 1523 (10th Cir. 1992).
§

1983,

the

analysis

In addressing a claim brought under

begins

by

identifying

constitutional right allegedly infringed.
U.S. 386, 393-94 (1989).

the

specific

Graham v. Connor, 490

The validity of the claim then must

be judged by reference to the specific constitutional standard
which governs that right. Id.
III.

Discussion
After reviewing Plaintiff’s complaint with the standards

set out above in mind, the Court finds that the complaint is
subject to summary dismissal under 28 U.S.C. § 1915A and 28
U.S.C. § 1915(e) because all of Plaintiff’s claims are either
premature under the principles of Heck v. Humphrey or untimely
under the statute of limitations.
A. Heck v. Humphrey
Under
damages

in

the

Heck

doctrine,

a

lawsuit

under

when

§

a

1983,

state
his

prisoner

complaint

seeks

must

be

dismissed where a judgment in his favor would necessarily imply
the

invalidity

of

his

conviction

or

sentence,

unless

the

plaintiff can show that the conviction or sentence has already
been

invalidated.

(1994).

Heck

v.

Humphrey,

512

U.S.

477,

486-87

As explained by the Tenth Circuit:

In Heck v. Humphrey, the Supreme Court held that in
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for
8

other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.
Heck v. Humphrey,
512 U.S. 477, 486-87 (1994) (footnote omitted).
Reed v. McCune, 298 F.3d 946, 953-54 (10th Cir. 2002).
The purpose behind Heck is “to prevent litigants from using
a

§

1983

action,

with

its

more

lenient

pleading

rules,

to

challenge their conviction or sentence without complying with
the more stringent exhaustion requirements for habeas actions.”
Johnson v. Pottawotomie Tribal Police Dep't, 411 F. App'x 195,
198 (10th Cir. 2011), quoting Butler v. Compton, 482 F.3d 1277,
1279 (10th Cir. 2007).
Claims

that

are

subject

to

the

accrued and therefore are premature.
without prejudice.

Heck

bar

have

not

yet

Such claims are dismissed

See Fottler v. United States, 73 F.3d 1064,

1065 (10th Cir. 1996)(“When a § 1983 claim is dismissed under
Heck, the dismissal should be without prejudice.”).
B. Statute of Limitations
The statute of limitations for § 1983 claims “is drawn from
the personal-injury statute of the state in which the federal
district court sits.”
1082 (10th Cir. 2008).

Mondragon v. Thompson, 519 F.3d 1078,
The Court therefore applies Kansas's two-

9

year statute of limitations for personal injury actions. See
Kan. Stat. Ann. § 60–513(a)(4).
While

state

law

governs

the

length

of

the

limitations

period and tolling issues, “the accrual date of a § 1983 cause
of action is a question of federal law.”
U.S. 384, 388 (2007).

Wallace v. Kato, 549

Under federal law, the claim accrues

“when the plaintiff has a complete and present cause of action.”
Id. at 388 (internal quotation marks and citation omitted).

In

other words, “[a] § 1983 action accrues when facts that would
support a cause of action are or should be apparent.”

Fogle v.

Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006)(internal quotation
marks and citation omitted).

“Since the injury in a § 1983 case

is the violation of a constitutional right, such claims accrue
when

the

plaintiff

knows

or

should

know

constitutional rights have been violated.”

that

his

or

her

Smith v. City of

Enid ex rel. Enid City Commission, 149 F.3d 1151, 1154 (10th Cir.
1998) (quotation and citations omitted).
In

certain

limitations

may

limited
be

circumstances,

subject

to

tolling.

the

statute

Because

the

of
Court

applies the Kansas statute of limitations in § 1983 cases, it
also looks to Kansas law for questions of tolling.
Deland, 49 F.3d 673, 675 (10th Cir. 1995).
burden

of

establishing

limitations period.

a

factual

Fratus v.

The plaintiff has the

basis

for

tolling

the

Aldrich v. McCulloch Props., Inc., 627 F.2d
10

1036, 1041 n. 4 (10th Cir. 1980); Slayden v. Sixta, 825 P.2d 119
(Kan. 1992).
A

district

court

may

dismiss

a

complaint

filed

by

an

indigent plaintiff if it is patently clear from the allegations
as

tendered

limitations.

that

the

action

is

barred

by

the

statute

of

Fogle, 435 F.3d at 1258.

Plaintiff makes the novel argument in his complaint that
the 5-year Kansas statute of limitations for actions based on a
written agreement should apply to his claims rather than the 2year personal injury statute of limitations.

He argues that the

two warrants of August 18, 2013, are written agreements, and all
of

the

alleged

connected

to

constitutional

those

two

violations

warrants.

arose

Finding

no

from

or

are

authority

for

Plaintiff’s argument, the Court looks to the plain language of
the statute.
agreement,

K.S.A. 60-511 provides that “[a]n action upon any

contract

within five years.

or

promise

in

writing”

shall

be

brought

A search warrant is not an agreement, a

contract, or a promise.

It is an order signed by a judge or

magistrate that authorizes law enforcement officers to search a
particular location without the occupant’s consent.

Plaintiff’s

argument must fail.
Plaintiff first filed his complaint on August 28, 2017.
Therefore,

any

of

Plaintiff’s

claims

11

that

accrued

prior

to

August 28, 2015, are barred by the statute of limitations and
subject to dismissal with prejudice.
C. Analysis of Plaintiff’s Claims
i. Count I:

Illegal search and seizure and conspiracy

The allegations in Count I are related to the search of
Plaintiff’s home that occurred on August 18, 2013.

Plaintiff

alleges the search began without a warrant, and once the warrant
was issued, Defendants forcibly entered his house without cause,
destroying Plaintiff’s door.

In addition, underlying this and

all of Plaintiff’s claims is his contention that he was the
victim of a broad-ranging conspiracy to deny him a fair trial
and

wrongfully

convict

him

of

killing

Tom

Miller.

Plaintiff

alleges the conspiracy involved all of the defendants, as well
as his defense counsel, and claims the purpose of the conspiracy
was to “form a total cover up, and frame [him]” for killing Mr.
Miller.

Doc. #6, p. 31.

Plaintiff

seeks

to

establish

that

the

search

and

any

seizures made pursuant to it were unconstitutional. Despite the
few details Plaintiff provided to the Court, it seems likely
that

evidence

obtained

during

Plaintiff’s subsequent conviction.
the

search

was

constitutionally

Plaintiff’s conviction is invalid.

the

search

contributed

to

Hence, a judgment here that
deficient

could

imply

that

See Trusdale v. Bell, 85 F.

App'x 691, 693 (10th Cir. 2003)(holding that prisoner's § 1983
12

claim alleging an unlawful search was barred by Heck because
evidence

obtained

pursuant

to

the

search

led

to

his

convictions).
Because Plaintiff has not shown that his conviction has
already

been

invalidated,

whether

reversed

on

direct

appeal,

expunged by executive order, called into question by a federal
court’s

issuance

of

or

otherwise

invalidated, this claim appears to be barred by Heck.

See Heck,

512 U.S. at 487.

a

writ

of

habeas

corpus,

Unless Plaintiff can show either (1) that his

conviction did not result from evidence obtained from the search
of his home on August 18, 2013, or (2) that his conviction has
already been invalidated, this count is subject to dismissal as
premature under Heck.
Even if the Heck doctrine is not applicable, this claim is
clearly

subject

limitations.
allegedly
police

wrongful

interrogation,

Muskogee

when

dismissal

as

barred

by

the

statute

of

The claim accrued on August 18, 2013, when the

actions

accrued

to

conduct

toward

a

or

search

the

actions

Police

Dept.,

occurred.
criminal

and

suspect,

seizure,

actually

195

“Claims

F.3d

are

occur.”
553,

558

arising
such

as

presumed

out

of

arrest,
to

Beck

v.

(10th

Cir.

have

City

of

1998)

(quoting Johnson v. Johnson County Com'n. Bd., 925 F.2d 1299,
1301 (10th Cir. 1991).

August 18, 2013, is well beyond the

limitations period, and Plaintiff has not established a factual
13

basis for tolling.

As a result, Count I is subject to dismissal

with prejudice.
ii.

Count II:

Excessive force

Count II alleges that Defendants used excessive force on
August

18,

2013,

while

Plaintiff’s home.

executing

the

warrant

to

search

It appears that success on this claim would

have no effect on his conviction for involuntary manslaughter of
Tom

Miller.

As

a

result,

it

is

not

barred

by

Heck.

See

Smithart v. Towery, 79 F.3d 951, 952–53 (9th Cir. 1996)(because a
successful

§

necessarily
conviction

1983

imply
for

action
the

assault

for

excessive

invalidity
with

a

of

deadly

force

would

plaintiff's
weapon,

arrest

Heck

did

not
or
not

preclude plaintiff's excessive force claim); Martinez v. City of
Albuquerque,

184

F.3d

1123,

1126

(10th

Cir.

1999)(claim

for

excessive force not barred by Heck because a finding that the
police

officers

utilized

excessive

force

to

arrest

Martinez

would in no manner demonstrate the invalidity of Martinez' state
court conviction).
Even though this claim is not premature under

Heck,

it

accrued at the time of the conduct (August 18, 2013) and is
therefore barred by the two-year statute of limitations.
Johnson, 925 F.2d at 1301.

14

See

iii. Count III:

Conspiracy

In Count III, Plaintiff alleges that the defendants from
the Seward County Sheriff’s Department and the Kansas Bureau of
Investigation (“KBI”) conspired prior to and during the searches
on August 17 and 18, 2013, to violate Plaintiff’s rights because
they wanted to fabricate evidence that Plaintiff and Mr. Miller
had a physical altercation to support their goal of framing
Plaintiff for killing Mr. Miller.
This claim is also subject to dismissal.

The only possible

injuries that can be inferred from the alleged conspiracy are
either

(1)

Plaintiff’s

criminal

conviction

with

resulting

damages, in which case the claim is premature under Heck, or (2)
the injuries Plaintiff suffered as a result of the alleged use
of excessive force, in which case the claim is barred by the
statute of limitations as discussed above.

See Kirby v. Dallas

County Adult Probation Dept., 359 F. App’x 27, 33 (10th Cir.
2009); Higgins v. City of Tulsa, Oklahoma, 103 F. App’x 648, 650
(10th Cir. 2004).

Given that according to Plaintiff the purpose

of the conspiracy was to falsely convict him, success on the
conspiracy

claim

“would

necessarily

imply

the

invalidity

of

[his] conviction” and cannot proceed “until the conviction has
been overturned.”

See Carbajal v. Hotsenpiller, 524 F. App’x

425, 428 (10th Cir. 2013), quoting Beck, 195 F.3d at 557, 558
n.3.
15

iv. Count IV: Unauthorized strip search and taking of nude
photographs
Plaintiff claims in Count IV that two defendants, Hawkins
and Larue, performed an unreasonable search in violation of the
Fourth Amendment when they had Plaintiff strip and photographed
him

on

August

18,

2013.

the

scope

of

exceeded
Plaintiff

alleges

the

Plaintiff
the

search

search

contends

the

warrant.

violated

the

defendants

In

addition,

Eighth

Amendment

because it was conducted in an abusive and harassing manner,
intended to humiliate him and inflict psychological pain.
Plaintiff’s Fourth Amendment claim is subject to the same
analysis as Count I above and similarly appears to be premature
under Heck.
A claim for violation of the 8th Amendment based on the
abusive and humiliating nature of the search would not operate
to

exclude

any

evidence

collected

during

therefore would not undermine the conviction.
is not barred by Heck.

the

search

and

Consequently, it

However, this claim accrued at the time

of the conduct (August 18, 2013) and is therefore barred by the
two-year statute of limitations.
v.

Count V:

Abusive and discriminatory police practices

Count V restates all of the allegations contained in Counts
I

through

IV,

claiming

the

wrongful

conduct

resulted

from

practices and policies developed and enforced by the supervisory

16

defendants.

This

count

does

not

state

a

separate

cause

of

action but is essentially alleging supervisory liability for the
conduct.

Because the Court has found the previous counts are

subject to dismissal, this count cannot stand on its own.
vi.

Count VI:

Failure to train, supervise, and discipline

Count VI also restates the previous allegations.

Plaintiff

adds the contention that Defendants did not properly supervise
their subordinates.

As with Count V, this count is alleging

supervisory liability and is dependent on the previous counts.
Since they are subject to dismissal, Count VI is as well.
vii. Count
VII:
Monell
liability
asserted
against
Defendant Seward County based on its alleged policy
for the execution of search warrants
The

allegations

in

Count

VII

relate

to

the

conducted by Defendants on August 17 and 18, 2013.

searches
Plaintiff

claims Seward County had a policy that supported the allegedly
wrongful
warrant.

conduct

of

the

deputies

who

executed

the

search

Presumably, at least some of the evidence used to

convict Plaintiff was procured during these searches.
result,

this

claim

is

premature

under

Heck.

If

it

As a
is

not

subject to the Heck doctrine, it is barred by the statute of
limitations.

Either way, this claim is subject to dismissal.

17

viii. Count VIII:
conspiracy
Count

VIII

Concealment of exculpatory evidence and

relates

to

the

concealment

of

evidence prior to Plaintiff’s criminal trial.

exculpatory

This is very

close to the allegations in Heck, where the plaintiff claimed
the

defendants

had

“knowingly

nature

and

destroyed”

exculpatory

in

could

have

innocence.”

Heck, 512 U.S. at 479.

evidence
proved

“which

[Mr.

was

Heck’s]

As the Supreme Court found

in Heck, judgment in favor of Plaintiff on this claim would
require the Court to find that the prosecutor and investigators
intentionally concealed or destroyed exculpatory evidence, thus
calling into question the validity of Plaintiff’s conviction.
Therefore,

this

conviction

is

demonstrating

§

set
his

1983

claim

aside.

is

Mr.

conviction

barred

by

Eikenberry

has

already

Heck

unless

alleges
been

no

his

facts

invalidated.

Accordingly, Count VIII must be dismissed without prejudice as
premature.

See Glaser v. City & Cty. of Denver, Colo., 557 F.

App'x

701

689,

(10th

Cir.

2014)

(“To

the

extent

[Plaintiff]

alleges that defendants . . . withheld exculpatory evidence in
connection with his prosecution, a judgment in his favor on
these allegations would necessarily imply the invalidity of his
conviction.”); Baldwin v. O'Connor, 466 F. App'x 717, 717–718
(10th Cir. 2012) (affirming dismissal pursuant to Heck of § 1983
claim alleging prosecutorial misconduct, among other things, in

18

that such a claim would necessarily imply the invalidity of the
plaintiff's convictions); Ames v. Oklahoma, 158 F. App’x 114,
117 (10th Cir. 2005) (Heck applied to bar inmate's § 1983 claim
of illegal confinement based upon allegations of use of false
testimony,

planted

evidence

and

the

destruction

of

favorable

evidence).
ix. Count IX:
conspiracy
In

Count

Manufacturing false inculpatory evidence and

IX,

Plaintiff

alleges

Defendants

manufactured

false inculpatory evidence by beating him during the search of
his home on August 18, 2013, and used that evidence at his
criminal trial to gain a conviction.

This count is also subject

to dismissal as premature under Heck.

See Parris v. United

States, 45 F.3d 383, 384 (10th Cir. 1995) (dismissing federal
civil claims pursuant to Heck where the plaintiff alleged that
the

government's

evidence

was

fabricated

and

that

the

prosecution witnesses committed perjury); Ames v. Oklahoma, 158
F. App’x 114, 117 (10th Cir. 2005) (Heck applied to bar inmate's
§ 1983 claim of illegal confinement based upon allegations of
use of false testimony, planted evidence and the destruction of
favorable evidence).
x.

Count X:

Fraudulent concealment

In Count X, Plaintiff claims Defendant Gnat “was aware of
problems with the search warrant signed by Tom Webb”, and that

19

the remaining named defendants knew the “results of concealing
the

evidence

and

[plaintiff].”

the

Doc.

damages

#6,

p.

it
37.

would

produce

the

contends

Plaintiff

upon

the

defendants violated his Fourteenth Amendment rights.
Fraudulent concealment of a cause of action is a possible
basis for tolling the statute of limitations but is not a cause
of action in and of itself.

Under Kansas law, in order “[t]o

constitute concealment of a cause of action within the general
rule

tolling

something

of

the
an

statute

of

affirmative

limitations,
nature

...

designed

there

to

must

prevent,

which does prevent, discovery of the cause of action.”

be
and

Baker v.

Bd. of Regents of State of Kan., 991 F.2d 628, 633 (10th Cir.
1993), quoting Friends Univ. v. W.R. Grace & Co., 608 P.2d 936,
941 (Kan. 1980).

“This standard is similar to that applied by

the Tenth Circuit for equitable tolling under federal principles
of fraudulent concealment.

The [plaintiff] must show that his

ignorance was not the result of his lack of diligence, but was
due to affirmative acts or active deception by the [defendants]
to conceal the facts giving rise to the claim.”

Id. at 633 n.4,

citing Johnson v. U.S. Postal Serv., 861 F.2d 1475, 1481 (10th
Cir. 1988), cert. denied, 493 U.S. 811 (1989).
Plaintiff has not asserted that he failed to file his §
1983 action within the limitations period because of affirmative
acts or active deception by Defendants, and the Court finds no
20

basis for tolling the statute of limitations due to fraudulent
concealment.
xi.

Kansas tort
justice

claims

and

common

law

obstruction

of

With respect to Plaintiff's state tort claims, the Court
finds that it is well-settled that state law violations are not
grounds for relief under § 1983.

“[A] violation of state law

alone does not give rise to a federal cause of action under §
1983.”

Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994).

This

Court is not obliged to exercise supplemental jurisdiction over
any state law claims, even if valid, given that

Plaintiff's

federal constitutional claims are subject to dismissal.

See 28

U.S.C. § 1367(c)(3).
xii. Plaintiff’s Motion for Counsel (Doc. #3)
The Court has considered Plaintiff’s Motion for Appointment
of

Counsel

(Doc.

#3).

There

is

no

constitutional

appointment of counsel in a civil case.

right

to

Durre v. Dempsey, 869

F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613,
617 (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 appointment of counsel.
Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006), citing

21

Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir.
2004).
have

It is not enough “that having counsel appointed would
assisted

possible

[the

case,

prisoner]

[as]

the

in

same

presenting

could

be

said

his
in

strongest
any

case.”

Steffey, 461 F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d
978, 979 (10th

Cir. 1995)).

In deciding whether to appoint

counsel, the Court has considered “the merits of the 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.”
1115.
this

Rucks, 57 F.3d at 979; Hill, 393 F.3d at

The Court concludes in this case that it is not clear at
juncture

that

Plaintiff

against a named defendant.

has

asserted

a

colorable

claim

Therefore, Plaintiff’s motion is

denied.
IV.

Response Required
For the reasons stated herein, it appears that Plaintiff’s

complaint is subject to dismissal under 28 U.S.C. §§ 1915A(b).
Plaintiff

is

therefore

complaint

should

not

required

be

to

dismissed.

show
The

good

cause

failure

to

why

his

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. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir.
1999).

Plaintiff is warned that his failure to file a timely
22

response may result in the complaint being dismissed for the
reasons stated herein without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted to and
including November 17, 2017, in which to show good cause, in
writing, why Plaintiff’s complaint should not be dismissed for
the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint
counsel (Doc. #3) is denied, without prejudice.
IT IS SO ORDERED.
DATED:

This 17th day of October, 2017, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

23