Walker v. Parker et al

Filing 6

ORDER TO SHOW CAUSE ENTERED: Petitioner's motion to proceed in forma pauperis 3 is granted. Petitioner's motion to appoint counsel 5 is denied. Petitioner is granted to and including October 23, 2017, to show cause why this matter sh ould not be dismissed. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 09/22/17. Mailed to pro se party Earnest Eugene Walker, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EARNEST EUGENE WALKER, JR.,
Petitioner,
v.

CASE NO. 17-3166-SAC

PAMELA C. PARKER, et al.,
Respondents.

ORDER TO SHOW CAUSE
This matter is a civil case filed by a person held at the Sedgwick
County Jail. The Court has conducted a preliminary review of
petitioner’s pro se pleadings and liberally construes this matter to
challenge the validity of his conviction and sentence and to allege
the conviction and sentence resulted from legal malpractice.
First, to the extent petitioner challenges the validity of his
sentence or conviction, his federal claim must be presented in habeas
corpus. However, because it appears an appeal remains pending in
petitioner’s criminal action1, a petition for habeas corpus is
premature. See 28 U.S.C. §2254(b)(1)(A)(requiring exhaustion of
available state court remedies).
Likewise, before petitioner may proceed in a federal civil action
for monetary damages based upon an invalid conviction or sentence,
he must show that his conviction or has been overturned, reversed,
or otherwise called into question. Heck v. Humphrey, 512 U.S. 477
(1994). The materials appended to the complaint do not support such
a finding, as the decision of the Kansas Court of Appeals reflects
1

On-line records maintained by the Kansas appellate courts reflect that petitioner
filed a petition for review on July 14, 2017, in Appeal No. 114931. That petition
remains pending.

that the petitioner’s appeal was affirmed in part and dismissed in
part on the ground of mootness. See Doc. #1, Ex. D, pp. 22-252.
Finally, in any event, petitioner’s claims against two members
of the Sedgwick County District Attorney’s Office fail on the ground
of prosecutorial immunity. Prosecutors are absolutely immune from
liability for damages in actions brought under 42 U.S.C. § 1983 that
are “intimately associated with the judicial phase of the criminal
process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Petitioner’s
claims concerning his criminal case fall squarely within the
prosecutorial function.
Accordingly, the Court directs petitioner to show cause why this
matter should not be dismissed. The Court offers no opinion on the
merits of any claim petitioner may present in state court on a theory
of legal malpractice.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s motion to
proceed in forma pauperis (Doc. #3) is granted.
IT IS FURTHER ORDERED petitioner’s motion to appoint counsel
(Doc. #5) is denied.
IT IS FURTHER ORDERED petitioner is granted to and including
October 23, 2017, to show cause why this matter should not be
dismissed. The failure to file a timely response may result in the
dismissal of this matter without additional prior notice.

2

The decision of the Kansas Court of Appeals also suggests that petitioner may have
additional state court remedies upon the conclusion of his appeal. Id.

IT IS SO ORDERED.
DATED:

This 22nd day of September, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge