Trass v. Rose et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: On or before March 9, 2018, plaintiff shall submit a certified financial statement showing the balance and deposit information for his institutional financial account. On or before March 9, 2018, plaintiff sh all show cause why this matter should not be dismissed. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 02/09/18. Mailed to pro se party Brennan R. Trass by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRENNAN R. TRASS,
Plaintiff,
v.

CASE NO. 18-3026-SAC

TRISH ROSE, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, proceeds pro se and seeks leave
to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
Because plaintiff has not submitted the certified financial
statement required by statute, the Court will direct him to provide

that information.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To state a claim for relief under Section 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, 48-49 (1988)(citations omitted).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). Rather, “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 Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombley and Erickson set out a new standard of review
for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See
Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” 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

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
Discussion
The defendants in this action are the state district court judge
and assistant district attorney in plaintiff’s pending state criminal
action. Plaintiff claims the judge erred in granting a motion in limine
filed by the assistant district attorney. He seeks an injunction and
a temporary restraining order in the state criminal case.
Plaintiff correctly recognizes that both defendants are shielded

by immunity. A district court judge is “absolutely immune from § 1983
liability except when the judge acts ‘in the clear absence of all
jurisdiction.’” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994),
cert. denied, 513 U.S. 832 (1994)(quoting Stump v. Sparkman, 435 U.S.
349, 356-57 (1978)). Likewise, a prosecutor is shielded by absolute
prosecutorial immunity for his actions taken “in preparing for the
initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State”. McCormick v.
City of Lawrence, Kan., 99 Fed.Appx. 169, 172 (10th Cir. 2004)(citing
Kalina v. Fletcher, 522 U.S. 118, 126 (1997)(quotation omitted). The
action here, presenting a motion in limine to the court, falls squarely
within the scope of prosecutorial immunity.
Likewise, the abstention doctrine announced in Younger v.
Harris, 401 U.S. 37 (1971), ordinarily prohibits a federal court from
interfering in an ongoing state court proceeding. Under Younger,
abstention is required where (1) there is an ongoing state court
proceeding; (2) the state court provides an adequate forum to hear
the claims presented in the federal complaint; and (3) the state
proceedings implicate important state interests, that is, “matters
which traditionally look to state law for their resolution or
implicate separately articulated state policies.” Amanatullah v.
Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)(quoting
Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997)). These
conditions are met in the present case, as plaintiff’s criminal case
is proceeding, the state courts provide him with an adequate forum,
and a state prosecution implicates important state interests in
enforcing criminal laws.
Because the named defendants are protected from suit by absolute

immunities, and because abstention is warranted under Younger v.
Harris, the Court directs plaintiff to show cause why this matter
should not be dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before March
9, 2018, plaintiff shall submit a certified financial statement
showing the balance and deposit information for his institutional
financial account.
IT IS FURTHER ORDERED that on or before March 9, 2018, plaintiff
shall show cause why this matter should not be dismissed for the
reasons discussed herein. The failure to file a timely response may
result in the dismissal of this matter without additional prior
notice.
IT IS SO ORDERED.
DATED:

This 9th day of February, 2018, at Topeka, Kansas.

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