Fairbanks v. Lawson et al
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,
JAMIE LEN LAWSON, et al.,
NOTICE AND ORDER TO SHOW CAUSE
appearing pro se, brings this 42 U.S.C. § 1983 civil rights
ordered to show cause to the Honorable Sam A. Crow why his
complaint should not be dismissed.
Nature of the Matter before the Court
Plaintiff’s complaint (Doc. #1) is based on the following
Morningside Drive on October 19, 2016, when officers from the
Lawrence Police Department (“LPD”) approached him.
He was then returned to 2409 Morningside Drive where
LPD officers executed a search warrant on Plaintiff’s apartment.
“all gray or black bandanas,” but the officers obtained a purple
bandana and a red bandana.
LPD Detective Jamie Len Lawson then
advising Plaintiff of his Miranda rights.
pursuant to an arrest warrant.
He remains in the Douglas County
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)).
attempted robbery (K.S.A. 21-5420(a)) in August of 2017, and is
arrested, and detained.”
Doc. #1, p. 2.
Plaintiff describes his
He does not specify
request for relief
as “some form of
financial compensation for the unlawful acts committed against
Doc. #1, p. 6.
Statutory Screening of Prisoner Complaints
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).
with any litigant, such as Plaintiff, who is proceeding in forma
determine its sufficiency.
See 28 U.S.C. § 1915(e)(2).
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
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
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.
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
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
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
(10th Cir. 1990).
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
(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.”
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.
Plaintiff’s complaint is subject to dismissal for a number
A. Miranda violation claim
without advising him of his Miranda rights.
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.
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
warnings subjects a
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
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.
warrant authorized the seizure of “all gray or black bandanas,”
but the searching officers seized a purple bandana and a red
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
A search that exceeds the scope of a search warrant may
constitute a violation of the Fourth Amendment.
Fourteenth Amendment, provides that “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
violated . . ..”
U.S. Const. amend. IV.
“What is reasonable
depends upon all of the circumstances surrounding the search or
seizure and the nature of the search or seizure itself.”
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)).
Where a warrant “clearly and precisely specifies items to
Amendment purposes unless their conduct may be justified under
an exception to the warrant requirement, such as the plain-view
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
Harman v. Pollock, 586 F.3d 1254, 1264 (10th
Cir. 2009), quoting Harman v. Pollock, 446 F.3d 1069, 1087 (10th
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
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.
However, even if the plain view exception does not apply,
The seizure of red and purple bandanas found while
searching for gray or black bandanas does not seem unreasonable
Pittsburgh, 90 F. Supp. 3d 400, 411 (W.D. Pa. 2015) (finding the
seizure of several sweatshirts other than the light gray or
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,
“practical and not abstract” and, therefore, the sufficiency of
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
constitutional rights by exceeding the scope of a search warrant
is subject to dismissal for failure to state a claim.
C. Heck bar
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
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,
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
Plaintiff’s subsequent arrest and conviction pursuant to plea
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
expunged by executive order, called into question by a federal
invalidated, this action appears to be barred by Heck.
Heck, 512 U.S. at 487.
Unless Plaintiff can show either (1)
interrogations of which he complains but that he suffered some
convicted and imprisoned (see id. at 487 n.7), or (2) that his
subject to dismissal for failure to state a claim upon which
relief can be granted.
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.
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.
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
writing, to the Honorable Sam A. Crow, United States District
Judge, why his complaint should not be dismissed for the reasons
IT IS SO ORDERED.
This 28th day of September, 2017, at Kansas City,
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?