Fairbanks v. Lawson et al

Filing 4

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including October 27, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why his complaint should not be dismissed. Signed by Magistrate Judge David J. Waxse on 09/28/17. Mailed to pro se party Joshua Hamilton Fairbanks by regular mail. (smnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JOSHUA HAMILTON FAIRBANKS, Plaintiff, v. CASE NO.17-3158-SAC-DJW JAMIE LEN LAWSON, et al., Defendants. NOTICE AND ORDER TO SHOW CAUSE Plaintiff Joshua Hamilton Fairbanks, a county inmate appearing pro se, brings this 42 U.S.C. § 1983 civil rights complaint. For the reasons discussed below, Plaintiff is ordered to show cause to the Honorable Sam A. Crow why his complaint should not be dismissed. I. Nature of the Matter before the Court Plaintiff’s complaint (Doc. #1) is based on the following allegations. Plaintiff was in the parking lot of 2409 Morningside Drive on October 19, 2016, when officers from the Lawrence Police Department (“LPD”) approached him. agreed to a Investigations conducted. voluntary and interview Training and Center was taken where the to Plaintiff the LPD’s interview was He was then returned to 2409 Morningside Drive where 1 LPD officers executed a search warrant on Plaintiff’s apartment. According to Plaintiff, the warrant specifically referred to “all gray or black bandanas,” but the officers obtained a purple bandana and a red bandana. conducted two custodial LPD Detective Jamie Len Lawson then interrogations of Plaintiff without advising Plaintiff of his Miranda rights. Plaintiff was released pursuant to an arrest warrant. but was arrested the next day He remains in the Douglas County Jail. According to online records of the Douglas County District Court, of which this Court takes judicial notice, Plaintiff was charged with one count each of aggravated burglary (K.S.A. 215807(b)) and attempted aggravated robbery (K.S.A. 21-5420(b)). He pled no contest to attempted aggravated burglary and attempted robbery (K.S.A. 21-5420(a)) in August of 2017, and is awaiting sentencing. Plaintiff claims he arrested, and detained.” which of his was Doc. #1, p. 2. constitutional Plaintiff describes his “unlawfully rights were stopped, searched, He does not specify allegedly request for relief violated. as “some form of financial compensation for the unlawful acts committed against me.” Doc. #1, p. 6. 2 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 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 3 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.” (10th Cir. 1990). not accept “mere conclusions characterizing Bryson v. City of Edmond, 905 F.2d 1386, 1390 “[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, 550 U.S. at 555 (internal quotation marks omitted). “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); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). In addressing a claim brought under § 1983, the analysis begins by identifying the specific constitutional right allegedly infringed. U.S. 386, 393-94 (1989). 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 Plaintiff’s complaint is subject to dismissal for a number of reasons. 4 A. Miranda violation claim Plaintiff claims that Defendant interrogated without advising him of his Miranda rights. him twice The law is well settled that an alleged failure to warn an individual of their Miranda rights alone cannot form the basis of a § 1983 claim. Chavez v. opinion); Martinez, Bennett v. 538 U.S. Pasic, 760, 545 772–73 F.2d (2003) 1260, 1263 (plurality (10th Cir. 1976)(“The Constitution and laws of the United States do not guarantee [Plaintiff] the right to Miranda warnings. They only guarantee him the right to be free from self-incrimination. The Miranda decision does not even suggest that police officers who fail to advise an arrested person of his rights are subject to civil liability; it requires, at most, only that any confession made in the absence of such advice of rights be excluded from evidence. No rational argument can be made in support of the notion that the failure to give police officer to liability Miranda under the warnings subjects a Civil Rights Act.”); Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1165 n. 6 (10th Cir. 2003); Haulman v. Jefferson County Sheriff Office, 15 Fed. Appx. 720, 721 (10th Cir. 2001) (“[T]he law in this circuit is clear that the only remedy available for a Miranda violation is the suppression of (citations omitted)). 5 any incriminating evidence.” As a result, any claim of Plaintiff relating to the alleged Miranda violations is subject to dismissal for failure to state a claim upon which relief may be granted. B. Seizure of items exceeding scope of warrant claim Plaintiff also contends that officers exceeded the scope of a search warrant when searching his apartment. Apparently, the warrant authorized the seizure of “all gray or black bandanas,” but the searching officers seized a purple bandana and a red bandana. Plaintiff does not attach a copy of the warrant or provide any further explanation. However, given that Plaintiff was charged with aggravated robbery, the Court suspects witness testimony or surveillance video showed the perpetrator wearing a bandana. A search that exceeds the scope of a search warrant may constitute a violation of the Fourth Amendment. Amendment, which is made applicable to the The Fourth states by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable violated . . ..” searches and seizures, U.S. Const. amend. IV. shall not be “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (citing New Jersey v. T.L.O., 469 U.S. 325, 337–42 (1985)). 6 Where a warrant “clearly and precisely specifies items to be seized, additional and the items, officers those executing officers act the warrant unreasonably for seize Fourth Amendment purposes unless their conduct may be justified under an exception to the warrant requirement, such as the plain-view exception.” Bowling v. Rector, 584 F.3d 956, 971 (10th Cir. 2009); citing Horton v. California, 496 U.S. 128, 138–42 (1990). “The plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity.” Harman v. Pollock, 586 F.3d 1254, 1264 (10th Cir. 2009), quoting Harman v. Pollock, 446 F.3d 1069, 1087 (10th Cir. 2006. It seems likely to the Court that the plain view exception applies in this case. The warrant authorized the seizure of gray or black bandanas. A search for those items clearly provides the searching officers with Fourth Amendment justification for having Depending the factual on access to red allegations and purple supporting the bandanas. probable cause determination justifying issuance of the search warrant, the officers could have had probable cause to suspect the red and purple bandanas were connected with criminal activity. id. 7 See However, even if the plain view exception does not apply, the Fourth seizures. Amendment prohibits unreasonable searches and The seizure of red and purple bandanas found while searching for gray or black bandanas does not seem unreasonable based on the information available. See Swope v. City of Pittsburgh, 90 F. Supp. 3d 400, 411 (W.D. Pa. 2015) (finding the seizure of several sweatshirts other than the light gray or cream colored sweatshirts described in the warrant did not appear to be unreasonable as that term is meant under the Fourth Amendment where eye witnesses disagreed about the attire of the alleged perpetrator); United States v. Ventresca, 380 U.S. 102, 108 (1965) (the requirements of the Fourth Amendment are “practical and not abstract” and, therefore, the sufficiency of a warrant must be judged in a “commonsense and realistic fashion”); United States v. Dougherty, 541 F. Supp. 2d 734, 738 (E.D. Pa. 2008), quoting United States v. $92,422.57, 307 F.3d 137, 149 (3d Cir. 2002) (“[t]he ‘particularity’ requirement is designed authorize to prevent ‘a the general, issuance exploratory of ‘general rummaging warrants' in a that person's belongings'”). Plaintiff’s claim that the defendant violated his constitutional rights by exceeding the scope of a search warrant is subject to dismissal for failure to state a claim. 8 C. Heck bar Finally, even if Plaintiff’s claims were not otherwise subject to dismissal, Plaintiff’s complaint is barred under the rule of Heck v. Humphrey. Under the Heck doctrine, when a state prisoner seeks damages in a lawsuit under § 1983, his complaint 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. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff seeks to establish in this civil rights action that certain of the searches, seizures, and interrogations that took place during investigation of the state criminal charges against him Plaintiff were unconstitutional. provided to the Despite Court, it the seems few details likely that Plaintiff’s subsequent arrest and conviction pursuant to plea resulted from interrogations. evidence obtained from the search and Hence, a judgment here that the search or the interrogations were constitutionally deficient would necessarily imply that Plaintiff’s conviction is invalid. 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 a writ of 9 habeas corpus, or otherwise invalidated, this action appears to be barred by Heck. See Heck, 512 U.S. at 487. Unless Plaintiff can show either (1) that not his conviction did result from the search or the interrogations of which he complains but that he suffered some actual, compensable injury other than the “injury” of being convicted and imprisoned (see id. at 487 n.7), or (2) that his conviction has already been invalidated, his complaint is subject to dismissal for failure to state a claim upon which relief can be granted. 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) for failure to state a claim upon which relief may be granted. Plaintiff is therefore complaint should not required be to dismissed. show good The 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 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 October 27, 2017, in which to show good cause, in 10 writing, to the Honorable Sam A. Crow, United States District Judge, why his complaint should not be dismissed for the reasons stated herein. IT IS SO ORDERED. DATED: This 28th day of September, 2017, at Kansas City, Kansas. s/ David J. Waxse DAVID J. WAXSE U.S. Magistrate Judge 11

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