Newson v. Blaisdell 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)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEVORIS ANTOINE NEWSON,
Plaintiff,
v.

CASE NO. 17-3212-SAC

KRISTA BLAISDELL, STEVEN
HORNBAKER, WYATT CHARLSON,
and TONDA JONES HILL,
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’s allegations in his Complaint involve his state criminal proceedings. See Case
No. 2017-cr-000387, filed April 24, 2017, in Geary County District Court. Plaintiff sues the
state court judge, the prosecuting attorney, defense counsel and a police officer involved in the
underlying charges. An online Kansas District Court Records Search indicates that the case is
currently pending, and a preliminary hearing is scheduled for May 22, 2018. Plaintiff seeks

1

release from custody, dismissal of Case No. 2017-cr-000387, and 25 million dollars for “pain
and suffering, emotional trauma, loss of liberty, and freedom.”
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
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

2

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,
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).

3

III. DISCUSSION
1. Younger Abstention
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
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, including Case No. 2017-cr-000387, are pending. An online Kansas District Court
Records Search indicates that the case is currently set for a preliminary hearing on May 22,
2018.3 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
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).
3
See Case No. 2017-cr-000387, filed April 24, 2017, in Geary County District Court.
4

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
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:

5

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.
2. Request to have His State Criminal Charges Dismissed
To the extent Plaintiff challenges the validity of his sentence or conviction, his federal
claim must be presented in habeas corpus. However, a petition for habeas corpus is premature
until Plaintiff has exhausted available state court remedies. See 28 U.S.C. § 2254(b)(1)(A)
(requiring exhaustion of available state court remedies).
3. Immunity
A. State Court Judge
Judge Hornbaker is entitled to personal immunity.

“Personal immunities . . . are

immunities derived from common law which attach to certain governmental officials in order
that they not be inhibited from ‘proper performance of their duties.’” Russ v. Uppah, 972 F.2d
300, 302–03 (10th Cir. 1992) (citing Forrester v. White, 484 U.S. 219, 223, 225 (1988)).
Plaintiff’s claim against the state court judge should be dismissed on the basis of judicial
immunity. A state judge is absolutely immune from § 1983 liability except when the judge acts
“in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)
(articulating broad immunity rule that a “judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in excess of his authority . . . .”); Hunt
v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). Only actions taken outside a judge’s judicial
6

capacity will deprive the judge of judicial immunity. Stump, 435 U.S. at 356–57. Plaintiff
alleges no facts whatsoever to suggest that Judge Hornbaker acted outside of his judicial
capacities.
B. Geary County Attorney
Plaintiff’s claims against Geary County Attorney Blaisdell 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 Geary County Attorney Blaisdell should not be dismissed based on prosecutorial
immunity.
4. Criminal Defense Attorney
Plaintiff has not shown that his state court defense attorney, Tonda Jones Hill, was acting
under color of state law as required under § 1983. See Polk Cty. v. Dodson, 454 U.S. 312, 318–
19, 321–23 (1981) (assigned public defender is ordinarily not considered a state actor because
their conduct as legal advocates is controlled by professional standards independent of the
administrative direction of a supervisor); see also Vermont v. Brillon, 556 U.S. 81, 91 (2009);
Dunn v. Harper County, 520 Fed. Appx. 723, 725-26, 2013 WL 1363797 at *2 (10th Cir. Apr. 5,
2013) (“[I]t is well established that neither private attorneys nor public defenders act under color
of state law for purposes of § 1983 when performing traditional functions as counsel to a
criminal defendant.” (citations omitted)). A criminal defense attorney does not act under color of
state even when the representation was inadequate. Briscoe v. LaHue, 460 U.S. 325, 330 n.6
(1983). Plaintiff’s claims against his defense attorney, Tonda Jones Hill, is subject to dismissal

7

for failure to state a claim.
IV. Motion to Appoint Counsel
Plaintiff has filed a motion for appointment of counsel (Doc. 4), alleging that he has
made a good faith effort to obtain counsel. 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. 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

8

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.
V. 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. 4) is denied without prejudice.
IT IS FURTHER ORDERED THAT Plaintiff’s Motion for Speedy Trial (Doc. 9) is
denied.
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

9