Chapman v. Montgomery County Sheriff's Office et al

Filing 7

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including June 25, 2018, in which to show good cause, in writing, why his complaint should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 05/25/18. Mailed to pro se party Brice D. Chapman, Sr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRICE D. CHAPMAN, SR.,
Plaintiff,
v.

CASE NO. 18-3069-SAC

MONTGOMERY COUNTY SHERIFF’S OFFICE, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Brice D. Chapman, Sr., an inmate at the Montgomery County Jail in
Independence, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. He proceeds
in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his

complaint should not be dismissed.
I. Nature of the Matter before the Court
Mr. Chapman’s complaint (Doc. 1) alleges his constitutional rights were violated when he
was strapped into a restraint chair for hours for no reason upon being booked into the jail. The
complaint further alleges he is being held without indictment and without evidence being sent to
be tested at the Kansas Bureau of Investigation’s (KBI) crime lab on an excessive and unreasonable
bond. Plaintiff names as defendants the Montgomery County Sheriff’s Office; the Montgomery
County District Attorney’s Office; Larry Markle, Montgomery County District of Attorney; the
Montgomery County Jail; the officers who arrested him; Officer Hankins; and Officer Louis.
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In Count I of his complaint, Plaintiff alleges that upon being booked into the Montgomery
County Jail, Officers Hankins and Louis strapped him into a restraint chair and left him there for
hours. He claims he did nothing to warrant being restrained, and the officers failed to follow
protocol.
In Count II, Plaintiff claims he was held on a felony charge without an indictment or just
cause. He complains that certain evidence has not been sent to the KBI crime lab for testing. He
also complains that his bond is excessive due to his prior criminal history of which the judge has
personal knowledge because he was formerly the district attorney who prosecuted Plaintiff on the
prior charges.
Plaintiff alleges Defendants have violated his rights under the Eighth, First, Fifth, and Sixth
Amendments. He seeks to have the criminal charges against him dismissed and to receive financial
compensation for his mental anguish.
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

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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,

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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’s complaint is subject to dismissal for a number of reasons.
A. Habeas Nature of Count II
Plaintiff seeks to have the criminal charges against him dismissed, which would obviously
result in his release from custody. A petition for habeas corpus relief is a state prisoner’s sole
remedy in federal court for a claim of entitlement to immediate or speedier release.

Preiser v.

Rodriguez, 411 U.S. 475, 499 (1973); McIntosh v. United States Parole Commission, 115 F.3d
809, 811 (10th Cir. 1997); see Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) (“Habeas
corpus is the only avenue for a challenge to the fact or duration of confinement, at least when the
remedy requested would result in the prisoner’s immediate or speedier release.”). When the
legality of a confinement is challenged so that the remedy would be release or a speedier release,
the case must be filed as a habeas corpus proceeding rather than under 42 U.S.C. § 1983, and the
plaintiff must comply with the exhaustion of state court remedies requirement. Heck v. Humphrey,
512 U.S. 477, 482 (1994); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)

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(exhaustion of state court remedies is required by prisoner seeking habeas corpus relief). Because
Plaintiff is challenging the legality of the charges against him and his current confinement, his
claims are not cognizable in a § 1983 action.
Liberally construing Plaintiff’s complaint as a habeas corpus action would not save it
because there is no indication that Plaintiff has exhausted his state court remedies. Mr. Chapman
must give the state courts an opportunity to act on his claims by properly presenting them to the
highest state court, either by direct appeal or through a state habeas action, before he presents those
claims to a federal court in a habeas petition. See Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir.
1999); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Plaintiff has not exhausted his claims in
the Kansas courts.
Count II of Plaintiff’s complaint must be dismissed from this action without prejudice to
his raising it in a habeas corpus petition after he has exhausted all available state remedies.
B. No Physical Injury
Plaintiff’s first count relates to an incident where he was strapped into a restraint chair and
left for several hours. Plaintiff alleges he suffered mental anguish as a result. Plaintiff does not
claim to have suffered any physical injury.
Section 1997e(e) provides in pertinent part:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.
42 U.S.C. § 1997e(e). Because Plaintiff did not suffer any physical injury, his claim in
Count I must also be dismissed.

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C. Improper Defendants
A county and its agencies such as the Sheriff’s Department and the county jail are not
“persons” that Congress made amenable to suit for damages under § 1983. Howlett v. Rose, 496
U.S. 356, 365 (1990); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 64, 71
(1989)(“Neither a State nor its officials acting in their official capacities are ‘persons’ 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).
To impose § 1983 liability on the county and its officials for acts taken by its employee,
plaintiff must show that the employee committed a constitutional violation and that a county policy
or custom was “the moving force” behind the constitutional violation. Myers v. Oklahoma County
Bd. of County Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998)(citing see Monell v. Department of
Social Services, 436 U.S. 658, 695 (1978)). The Supreme Court explained that in Monell they
decided “a municipality can be found liable under § 1983 only where the municipality itself causes
the constitutional violation at issue,” and “there are limited circumstances in which an allegation
of a ‘failure to train’ can be the basis for liability under § 1983.” City of Canton, Ohio v. Harris,
489 U.S. 378, 385–86 (1989). Plaintiff has pointed to no policy or deficiency in the training
program used by the Sheriff or Montgomery County and no causal link between any such
inadequacy and the allegedly unconstitutional acts of Officers Hankins and Louis.
Defendants Montgomery County Sheriff’s Office, Montgomery County District Attorney’s
Office, and Montgomery County Jail are subject to dismissal from this action.
D. Immunity
Plaintiff names the prosecutor, Larry Markle, as a defendant. Prosecutors are absolutely
immune from civil liability for damages for “acts undertaken by a prosecutor in preparing for the

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initiation of judicial proceedings or for trial, and which occur in the course of his role as an
advocate for the State.” Stein v. Disciplinary Bd. of Supreme Court of New Mexico, 520 F.3d 1183,
1193 (10th Cir. 2008) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 209 (1993)). “Absolute
immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the
immunity.” Id. at 1189. “One such protected act is the decision to prosecute.” Id. (citing see, e.g.,
Imbler v. Pachtman, 424 U.S. 409, 431, (1976)). The decision whether to bring charges, along
with the review of evidence that such a decision requires, “is a quintessential prosecutorial function
protected by absolute immunity.” Id. at 1194. Defendant Markle is subject to dismissal from this
action.
E. Personal Participation
An essential element of a civil rights claim against an individual is that person’s direct
personal participation in the acts or inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Trujillo, 465 F.3d at 1227; Foote v. Spiegel, 118 F.3d 1416,
1423–24 (10th Cir. 1997). Conclusory allegations of involvement are not sufficient. See Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009). As a result, a plaintiff is required to name each defendant not
only in the caption of the complaint, but again in the body of the complaint and to include in the
body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional
rights.
Plaintiff appears to name as defendants the arresting officers and unknown members of the
Montgomery County Jail staff. Plaintiff has not identified particular acts or omissions by these
defendants, or by Defendant Markle.

Plaintiff must explain what each defendant did to him,

when the defendant did it, how the defendant’s actions harmed him, and what specific legal right
he believes the defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,

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1163 (10th Cir. 2007). Since he has failed to do this, Plaintiff has not adequately pled a cause of
action under § 1983 against any of these defendants.
VI. Response and/or Amended Complaint Required
For the reasons stated herein, it appears that Plaintiff’s complaint is subject to dismissal
under 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) for failure to state a claim upon which relief may
be granted. Plaintiff is therefore required to show good cause why his complaint should not be
dismissed. The failure to file a timely, specific response waives appellate review of both factual
and legal questions. Makin v. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999). Plaintiff
is warned that his failure to file a timely response may result in the complaint being dismissed for
the reasons stated herein without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted to and including June 25, 2018,
in which to show good cause, in writing, why his complaint should not be dismissed for the reasons
stated herein.
IT IS SO ORDERED.
DATED: This 25th day of May, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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