Montgomery (ID 94961) v. Markos et al

Filing 19

MEMORANDUM AND ORDER ENTERED: This case is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 04/30/19. Mailed to pro se party Alphonso Montgomery, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALPHONSO MONTGOMERY, JR.,
Plaintiff,
v.

CASE NO. 17-3202-SAC

TERESA MARKOS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff proceeds pro se and in forma pauperis in this prisoner civil rights action. On
May 1, 2018, the Court entered a Memorandum and Order and Order to Show Cause (Doc. 8)
(“MOSC”), granting Plaintiff until May 28, 2018, in which to show good cause why Plaintiff’s
Amended Complaint (Doc. 6) should not be dismissed for the reasons stated in the MOSC. The
Court also granted Plaintiff until May 28, 2018, in which to file a complete and proper Second
Amended Complaint to cure all the deficiencies discussed in the MOSC.
The Court granted Plaintiff several extensions of time to respond to the MOSC. On
July 3, 2018, the Court entered an Order (Doc. 15) staying this matter pending a ruling by the
Kansas Court of Appeals on Plaintiff’s criminal case. The Order also instructed Plaintiff to
notify the Court when such a ruling is made to enable to Court to set a new response deadline for
the MOSC. Although Plaintiff failed to notify the Court, the Court entered an Order (Doc. 16)
on April 5, 2019, noting that the docket of the Kansas Court of Appeals reflects that the court
affirmed Plaintiff’s sentence on March 22, 2019. See State v. Montgomery, No. 118558 (Kan.
Ct. App. March 22, 2019). The Court ordered Plaintiff to respond to the MOSC by April 26,
2019. (Doc. 16.)

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The Court’s Order at Doc. 16 was mailed to Plaintiff at his current address of record and
was returned as undeliverable. (Docs. 17, 18.) The Court’s Local Rules provide that “[e]ach
attorney or pro se party must notify the clerk in writing of any change of address or telephone
number. Any notice mailed to the last address of record of an attorney or pro se party is
sufficient notice.” D. Kan. Rule 5.1(c)(3). Plaintiff has failed to provide the Court with a Notice
of Change of Address and has failed to respond to the MOSC within the allowed time.
The Court’s MOSC found that: deprivations of property do not deny due process as long
as there is an adequate post-deprivation remedy and an adequate, state post-deprivation remedy
exists; Plaintiff’s conclusory allegations of a conspiracy are insufficient to state a claim;
Plaintiff’s claims against Defendant Walton fail on the ground of prosecutorial immunity; and
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 Court stayed Plaintiff’s claim for

monetary damages pending the resolution of the pending criminal charges. See Garza v. Burnett,
672 F.3d 1217, 1220 (10th Cir. 2012) (citing Wallace v. Kato, 549 U.S. 384, 393 (2007)); Myers
v. Garff, 876 F.2d 79, 81 (10th Cir. 1989) (directing district court to stay claim for damages).
Plaintiff’s conviction has now been affirmed on appeal. 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 “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

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collateral proceeding, or by executive order. Id. at 486–87. Plaintiff has failed to allege that his
conviction or sentence has been overturned.
Plaintiff has failed to respond to the MOSC within the allowed time. The Court finds that
this case should be dismissed for the reasons set forth in the MOSC.
IT IS THEREFORE ORDERED BY THE COURT that this case is dismissed for
failure to state a claim.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 30th day of April, 2019.

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

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