Bailey v. Kansas, State of et al

Filing 14

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's Motion to Unjoin and Join Parties 10 is granted. Plaintiff is granted until May 18, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Amended Complaint should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 04/20/18. Mailed to pro se party Brigham J. Bailey by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIGHAM J. BAILEY,
Plaintiff,
v.

CASE NO. 17-3193-SAC

STATE OF KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
This matter is before the Court for screening of Plaintiff’s Amended Complaint. On
February 2, 2018, the Court entered an Order (Doc. 8) giving Plaintiff the opportunity to file a
complete and proper amended complaint upon court-approved forms. The Order noted that
Plaintiff’s original complaint joined various unrelated claims, including allegations regarding:
false affidavits signed by Grandview Plaza police officers on October 21 and 26, 2016; an
interception of legal mail at the Geary County Detention Center (“GCDC”) on January 25, 2017;
a denial of medical care at the GCDC on April 27, 2017; GCDC staff falsifying a sleep study
between March 15 to March 18, 2017; and the performance of his public defender in his state
criminal proceeding. The Order cautioned Plaintiff that he must follow Rules 20 and 18 of the
Federal Rules of Civil Procedure when filing an amended complaint.
Plaintiff responded by filing a Motion to Unjoin and Join Parties (Doc. 10) and an
Amended Complaint (Doc. 11). To the extent Plaintiff’s motion to unjoin and join parties
merely seeks to dismiss defendants that were named in his original complaint, and to add
defendants named in his Amended Complaint, the motion is granted.
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I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court
granted Plaintiff leave to proceed in forma pauperis. At the time of filing, Plaintiff was a pretrial
detainee at GCDC. Plaintiff is currently incarcerated at the Norton Correctional Facility in
Norton, Kansas (“NCF”).
Plaintiff names as Defendants the State of Kansas; Shawn Peirano, Grandview Plaza
Police Chief; Michael Rivera, Grandview Plaza Police Officer; Keaton Landry, Grandview Plaza
Police Officer; Dan Breci, Junction City Police Chief; and Michelle Brown, Assistant Geary
County Attorney.

Plaintiff sues the State of Kansas in its official capacity, and sues the

remaining Defendants in their individual capacities.
Plaintiff’s claims relate to his state court criminal proceeding for aggravated battery and
knowingly causing great bodily harm or disfigurement, involving injuries to Plaintiff’s infant
child. Plaintiff alleges that the defendant officers submitted perjurious and slanderous police
reports in connections with his state criminal proceeding. Plaintiff claims that defendants’
statements in the police reports or Law Enforcement Affidavits include “multiple false and
slanderous, and other malicious, cruel and degrading statements, including statements [they] are
not qualified to make.” Plaintiff also claims the statements are “hypocritical and contradicting.”
Plaintiff alleges that Defendants Peirano and Breci, as Chiefs of Police, and Defendant
Rivera, as Police Captain, are liable as supervisors for failing to intervene to stop the actions of
their respective officers. Plaintiff alleges that police officers Landry and Brown personally
participated in the violation of federal and state laws by making unlawful and unreasonably
intrusive statements on their police reports. Plaintiff alleges that Defendant Brown, Assistant
Geary County Attorney, “made unlawful and unreasonably intrusive statements, and lacked

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making reasonable statements to a judge.”

Plaintiff alleges that Defendant Brown allowed false

and perjurious police reports to be admitted into evidence; misrepresented the condition of the
infant child at a bond hearing; and failed to make reasonably diligent efforts to comply with a
discovery request.
Plaintiff brings Count I against the State of Kansas, citing Kan. Stat. Ann. § 22-2907 and
stating that “[t]he State of Kansas does not enforce among the counties to adopt policies for a
diversion program.” (Doc. 11, at 3.) Plaintiff brings Count II against Defendants Peirano,
Rivera and Landry, for slander, perjury, and violations of the Fourteenth Amendment and of
paragraph II of the Kansas Bill of Rights. Plaintiff brings Count III against Defendants Brown
and Breci, for slander, perjury, violations of the Fifth and Fourteenth Amendments, and
paragraph 1, 6, and 11 of the Kansas Bill of Rights. Plaintiff brings Count IV against Defendant
Brown for perjury and slander. Plaintiff seeks to have this action certified as a class action,
compensatory damages, punitive damages, and a declaratory judgment.
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 an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“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)

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(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[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.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court,
a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant
did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round
out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.

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Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
1. State of Kansas
Plaintiff’s Amended Complaint names the State of Kansas as defendant. The State of
Kansas and its agencies are absolutely immune from suits for money damages under the
Eleventh Amendment. The Eleventh Amendment presents a jurisdictional bar to suits against a
state and “arms of the state” unless the state waives its immunity. Peterson v. Martinez, 707
F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2 v. Grand
River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). Therefore, in the absence of some
consent, a suit in which an agent or department of the state is named as a defendant is
“proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984).
To bring a § 1983 claim, a plaintiff must show a “deprivation of a civil right by a
‘person’ acting under color of state law.” McLaughlin v. Bd. of Trustees of State Coll. of Colo.,

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215 F.3d 1168, 1172 (10th Cir. 2000). The State and its agencies are not “persons” subject to
suit for money damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58,
66, 71 (1989) (neither state nor state agency is a “person” which can be sued under § 1983);
Davis v. Bruce, 215 F.R.D. 612, 618 (D. Kan. 2003), aff’d in relevant part, 129 F. App’x 406,
408 (10th Cir. 2005). Plaintiff’s request for money damages against the State of Kansas is
subject to dismissal.
2. Assistant County Attorney
Plaintiff’s claims against Defendant Brown fail on the ground of prosecutorial immunity.
Prosecutors are absolutely immune from liability for damages in actions asserted against them
for actions taken “in initiating a prosecution and in presenting the State’s case.” Imbler v.
Pachtman, 424 U.S. 409, 431 (1976).

Plaintiff’s claims concerning his criminal case fall

squarely within the prosecutorial function. Plaintiff is directed to show cause why his claims
against Defendant Brown should not be dismissed based on prosecutorial immunity.
3. Supervisory Liability
Plaintiff alleges that Defendants Peirano and Breci, as Chiefs of Police, and Defendant
Rivera, as Police Captain, are liable as supervisors for failing to intervene to stop the actions of
their respective officers.

Plaintiff has failed to allege any personal involvement in a

constitutional violation by these defendants. Plaintiff’s claims require proof that a defendant
personally committed a constitutional violation. Keith v. Koerner, 843 F.3d 833, 837–38 (10th
Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”)). It is not enough

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that a defendant acted in a supervisory role when another defendant violated a plaintiff’s
constitutional rights. Keith, 843 F.3d at 838.
Plaintiff “must show an affirmative link between [a defendant] and the constitutional
violation, which requires proof of three interrelated elements:

(1) personal involvement;

(2) causation; and (3) state of mind.” Id. (internal quotation marks omitted) (citing Schneider v.
City of Grand Junction Police Dep’t., 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614
F.3d at 1195)).

Because Plaintiff has failed to allege any personal involvement in a

constitutional violation by Defendants Peirano, Breci and Rivera, his claims against them are
subject to dismissal.
4. Younger Abstention
The Court may be prohibited from hearing Plaintiff’s claims relating to his state criminal
case under Younger v. Harris, 401 U.S. 37, 45 (1971). “The Younger doctrine requires a federal
court to abstain from hearing a case where . . . (1) state judicial proceedings are ongoing; (2)
[that] implicate an important state interest; and (3) the state proceedings offer an adequate
opportunity to litigate federal constitutional issues.” Buck v. Myers, 244 F. App’x 193, 197 (10th
Cir. 2007) (unpublished) (citing Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th
Cir. 2003); see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432
(1982)). “Once these three conditions are met, Younger abstention is non-discretionary and,
absent extraordinary circumstances, a district court is required to abstain.” Buck, 244 F. App’x
at 197 (citing Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th
Cir. 2003)).
It appears as though the first condition is met. Plaintiff’s state court criminal proceedings
appear to be pending on appeal. An online Kansas District Court Records Search indicates that

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the case is currently on appeal.1

The second condition would be met because Kansas

undoubtedly has an important interest in enforcing its criminal laws through criminal
proceedings in the state’s courts. In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (“[S]tate
control over criminal justice [is] a lynchpin in the unique balance of interests” described as “Our
Federalism.”) (citing Younger, 401 U.S. at 44). Likewise, the third condition would be met
because Kansas courts provide Plaintiff with an adequate forum to litigate his constitutional
claims by way of pretrial proceedings, trial, and direct appeal after conviction and sentence, as
well as post-conviction remedies. See Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993)
(“[F]ederal courts should abstain from the exercise of . . . jurisdiction if the issues raised . . . may
be resolved either by trial on the merits in the state court or by other [available] state
procedures.”) (quotation omitted); see Robb v. Connolly, 111 U.S. 624, 637 (1984) (state courts
have obligation ‘to guard, enforce, and protect every right granted or secured by the constitution
of the United States . . . .’”); Steffel v. Thompson, 415 U.S. 452, 460–61 (1974) (pendant state
proceeding, in all but unusual cases, would provide federal plaintiff with necessary vehicle for
vindicating constitutional rights).
“[T]he Younger doctrine extends to federal claims for monetary relief when a judgment
for the plaintiff would have preclusive effects on a pending state-court proceeding.” D.L. v.
Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); see Buck, 244 F. App’x at 198.
“[I]t is the plaintiff’s ‘heavy burden’ to overcome the bar of Younger abstention.” Phelps v.
Hamilton, 122 F.3d 885, 889 (10th Cir. 1997).
In responding to this Memorandum and Order and Order to Show Cause, Plaintiff should
clarify whether or not state criminal proceedings are ongoing. If Plaintiff has been convicted and

1

See 2016-CR-000894, Geary County, Kansas, filed October 21, 2016.
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a judgment on Plaintiff’s claim in this case would necessarily imply the invalidity of that
conviction, the claim may be barred by Heck. In Heck v. Humphrey, the United States Supreme
Court held that when a state prisoner seeks damages in a § 1983 action, the district court must
consider the following:
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.
Heck v. Humphrey, 512 U.S. 477, 487 (1994). In Heck, the Supreme Court held that a § 1983
damages claim that necessarily implicates the validity of the plaintiff’s conviction or sentence is
not cognizable unless and until the conviction or sentence is overturned, either on appeal, in a
collateral proceeding, or by executive order. Id. at 486–87.
Furthermore, state court records show that Plaintiff entered a guilty plea on December 15,
2017. “[A]n accused who enters a voluntary plea of guilty waives any defects or irregularities
occurring in any of the prior proceedings in district court.” State v. Smith, 409 P.3d 876, 2018
WL 559804, at *2 (Kan. Ct. App. 2018); see also Osborn v. Shillinger, 997 F.2d 1324, 1327
(10th Cir. 1993) (guilty plea bars subsequent challenges based on nonjurisdictional, pre-plea
errors).
5. State Law Claims
Plaintiff alleges inappropriate and unreasonable conduct, and the use of cruel and
degrading statements, which do not rise to the level of a constitutional violation. Plaintiff also
alleges slander and other violations of state law. State law violations are not grounds for relief
under § 1983. “[A] violation of state law alone does not give rise to a federal cause of action
under § 1983.” Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994) (citation omitted). This
Court is not obliged to exercise supplemental jurisdiction over any state law claims, even if
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valid, given that Plaintiff's federal constitutional claims are subject to dismissal. See 28 U.S.C.
§ 1367(c)(3).
IV. Response Required
Plaintiff is required to show good cause why his Amended Complaint should not be
dismissed for the reasons stated herein. The failure to file a timely response may result in the
dismissal of this matter without additional prior notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Unjoin
and Join Parties (Doc. 10) is granted.
IT IS FURTHER ORDERED that Plaintiff is granted until May 18, 2018, in which to
show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why
Plaintiff’s Amended Complaint should not be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated in Topeka, Kansas on this 20th day of April, 2018.

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

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