Fairbanks v. Lawson et al

Filing 5

MEMORANDUM AND ORDER: This action is dismissed for failure to state a claim upon which relief may be granted. Signed by U.S. District Senior Judge Sam A. Crow on 11/17/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSHUA HAMILTON FAIRBANKS,
Plaintiff,
v.

CASE NO.17-3158-SAC

JAMIE LEN LAWSON, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff alleges that he
was unlawfully stopped, searched, arrested, and detained by the Lawrence, Kansas, Police
Department. He makes two specific claims. First, he alleges he was interrogated twice without
being advised of his Miranda rights. Second, Plaintiff claims the search of his apartment
violated the Fourth Amendment because it exceeded the scope of the search warrant.

Plaintiff

seeks compensatory damages.
On September 28, 2017, U.S. Magistrate Judge Waxse entered a Notice and Order to
Show Cause (Doc. #4)(“NOSC”) ordering Plaintiff to show cause by October 27, 2017, why this
matter should not be dismissed due to the deficiencies set forth. The NOSC stated that if
Plaintiff failed within the time allotted to file a response, this action could be dismissed without
further notice. Plaintiff has not responded to the NOSC.
The NOSC found that failure to warn an individual of their Miranda rights alone cannot
form the basis of a § 1983 claim. See Chavez v. Martinez, 538 U.S. 760, 772–73 (2003)
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(plurality opinion); Bennett v. Pasic, 545 F.2d 1260, 1263 (10th Cir. 1976).

The NOSC also

found that the seizure of red and purple bandanas where the warrant specified black or gray
bandanas was not unreasonable under the Fourth Amendment. See Swope v. City of Pittsburgh,
90 F. Supp. 3d 400, 411 (W.D. Pa. 2015); United States v. Ventresca, 380 U.S. 102, 108 (1965).
Finally, the NOSC found that in any event, Plaintiff’s claims are barred by the Heck doctrine
because finding in Plaintiff’s favor would necessarily call into question the validity of his
conviction, and it has not already been invalidated. See Heck v. Humphrey, 512 U.S. 477, 48687 (1994). All of Plaintiff’s claims are dismissed under 28 U.S.C. § 1915A(b) for failure to state
a claim upon which relief may be granted.
IT IS THEREFORE ORDERED that this action is dismissed for failure to state a claim
upon which relief may be granted.
IT IS SO ORDERED.
DATED: This 17th day of November, 2017, at Topeka, Kansas.
s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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