Newson v. Quintanar et al

Filing 11

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion for appointment of counsel 4 is denied without prejudice. Plaintiff's Motion for Speedy Trial 9 is denied. Plaintiff is granted until June 1, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 05/07/18. Mailed to pro se party Devoris Antoine Newson by regular mail. (smnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS DEVORIS ANTOINE NEWSON, Plaintiff, v. CASE NO. 17-3210-SAC DAVID QUINTANAR, et al., Defendants. MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE Plaintiff Devoris Antoine Newson is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. I. Nature of the Matter before the Court Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is a pretrial detainee at the Geary County Detention Center in Junction City, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff alleges that around January 15, 2015, he was placed on deferred probation. Plaintiff attaches documentation showing a “deferred adjudication” in the El Paso, Texas, District Court. (Doc. 1–1.) He transferred his probation to Kansas around January 30, 2015, due to his state citizenship under the Interstate Compact for Adult Offender Supervision (“ICAOS”). Plaintiff alleges that when he arrived in Kansas he was placed on parole as a convicted felon, and “harassed for over a year.” On March 22, 2016, Plaintiff was arrested in Junction City, Kansas, for driving with a suspended license and having an open container. Plaintiff was detained, and his parole was 1 revoked. Plaintiff alleges that he was not given a probable cause hearing, and he was released on April 12, 2016, when the State of Kansas “dismissed the parole.” Plaintiff alleges that the case was dismissed on May 3, 2017, and attaches a dismissal order entered in the Junction City Municipal Court. See Doc. 1–1, at 6. Plaintiff alleges that on June 7, 2016, the Kansas Parole Office caused the State of Texas to issue a parole violation warrant for Plaintiff’s arrest. As Count I, Plaintiff alleges a violation of the Thirteenth Amendment’s protection against slavery. As Count II, Plaintiff alleges a denial of due process and equal protection in violation of the Fourteenth Amendment. As Count III, Plaintiff claims double jeopardy in violation of the Fifth Amendment. Plaintiff names as Defendants State Parole Officers David Quintanar, Jonathan Norton and Tabatha Neubert. Plaintiff seeks ten million dollars for financial loss, pain and suffering, and emotional distress. Plaintiff also seeks immunity and dismissal of his probation violation case. 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) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court 2 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. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 3 561 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 Plaintiff is in pretrial detention and is the subject of three pending criminal actions.1 Plaintiff also commenced a petition for habeas corpus in the state district court, which remains pending.2 The Court may be prohibited from hearing Plaintiff’s claims relating to his state criminal cases 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, 1 The Court takes judicial notice that Plaintiff is charged in the District Court of Geary County in three criminal actions: 2017-cr-000387 (filed April 24, 2017); 2017-cr-000527 (filed June 5, 2017); and 2017-cr-000797 (filed September 1, 2017). 2 See Case No. 2017-cv-000244 in the District Court of Geary County (filed October 16, 2017). 4 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 are currently pending. An online Kansas District Court Records Search indicates that all three cases are set for Preliminary Hearing on May 22, 2018. 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. 5 “[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 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. IV. Motion to Appoint Counsel Plaintiff has filed a motion for appointment of counsel (Doc. 2), alleging that Junction City is “very corrupt” and organized on the “buddy system.” The Court has considered Plaintiff’s motion for appointment of counsel. There is no constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to appoint counsel in a civil matter lies in the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 6 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the prisoner] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979). The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a colorable claim against a named defendant; (2) the issues are not complex; and (3) Plaintiff appears capable of adequately presenting facts and arguments. The Court denies the motion without prejudice to refiling the motion if Plaintiff’s Complaint survives screening. Plaintiff has also filed a “Motion for Speedy Trial” (Doc. 9), claiming the right to a speedy trial under the Sixth Amendment. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, . . . .” Because this action is a civil proceeding, Plaintiff’s motion is denied. VI. Response Required Plaintiff is required to show good cause why his Complaint should not be dismissed for the reasons stated herein IT IS THEREFORE ORDERED THAT Plaintiff’s motion for appointment of counsel (Doc. 2) is denied without prejudice. IT IS FURTHER ORDERED THAT Plaintiff’s Motion for Speedy Trial (Doc. 9) is denied. 7 IT IS FURTHER ORDERED THAT Plaintiff is granted until June 1, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. IT IS SO ORDERED. Dated in Topeka, Kansas, on this 7th day of May, 2018. s/ Sam A. Crow Sam A. Crow U.S. Senior District Judge 8

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