Payton (ID 66352) v. State of Kansas et al

Filing 5

MEMORANDUM AND ORDER ENTERED: This matter is liberally construed as a petition for habeas corpus and is dismissed without prejudice. The clerk of the court shall refund $6.00 to petitioner and shall set aside that portion of the Court's order imposing a $350.00 filing fee in this matter. Signed by U.S. Senior District Judge Sam A. Crow on 11/21/17. Mailed to pro se party Walter Payton by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WALTER PAYTON,
Plaintiff,
v.

CASE NO. 17-3177-SAC

STATE OF KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil action filed by a prisoner in state
custody. On October 31, 2017, the Court assessed an initial partial
filing fee and directed plaintiff to show cause why this matter should
not be dismissed. The order explained that if plaintiff seeks relief
from his sentence, he must proceed in habeas corpus. However, if
plaintiff seeks damages, his claim fails because the State of Kansas
is shielded from a damages award by the Eleventh Amendment, the
defendant state district judge is shielded by absolute judicial
immunity, and the defendant prosecutor is shielded by prosecutorial
immunity.
Plaintiff filed a timely response (Doc. #4). Because that
response clearly shows that the relief sought is immediate release,
or, in the alternative, a new sentence, the Court concludes petitioner
is challenging the validity of his sentence and this matter must be
construed as a petition for habeas corpus. See Preiser v. Rodriguez,
411 U.S. 475, 500 (1973)(the sole remedy available to a state prisoner
seeking either immediate or speedier release from confinement is
habeas corpus). Before Mr. Payton may proceed in habeas corpus,
however, he must show that he has exhausted the claims by presenting

them to the state courts. To exhaust claims, a habeas petitioner must
present the claims for relief in each appropriate state court, a
doctrine developed “to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999).
In addition, because he previously has sought habeas corpus
relief, Mr. Payton must obtain prior authorization from the U.S. Court
of Appeals for the Tenth Circuit to proceed in a second or successive
application for habeas corpus. See Payton v. Werholtz, 523 Fed. Appx.
506, (10th Cir. Jul. 25, 2013)(discussing petitioner’s filing
history).
Conclusion
For the reasons set forth, the Court construes this matter as
a petition for habeas corpus challenging the validity of Mr. Paytonr’s
sentence. Because he has not obtained prior authorization for
proceeding in a habeas corpus petition, this matter must be dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is liberally
construed as a petition for habeas corpus and is dismissed without
prejudice.
IT IS FURTHER ORDERED the clerk of the court shall refund $6.00
to petitioner and shall set aside that portion of the Court’s order
imposing a $350.00 filing fee in this matter.
IT IS SO ORDERED.
DATED:

This 21st day of November, 2017, at Topeka, Kansas.

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