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)

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
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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

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