Johnson v. Barnes et al

Filing 7

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until August 13, 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 dismi ssed. That Plaintiff is also granted until August 13, 2018, in which to file a complete and proper Amended Complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 07/13/18. Mailed to pro se party Anthony K. Johnson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY K. JOHNSON,
Plaintiff,
v.

CASE NO. 18-3072-SAC

LINDA BARNES, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Anthony K. Johnson., an inmate at the Riley County Jail in Manhattan, Kansas,
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted his motion
to proceed in forma pauperis and assessed an initial partial filing fee of $4.00. Plaintiff filed a
response (Doc. 6), indicating that he does not have funds available to pay the partial fee. The
Court will grant a waiver of the initial partial filing fee. 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
Plaintiff’s allegations in his Complaint involve his state criminal proceedings. See Case
No. 2016-cr-000297 in Geary County District Court. Plaintiff alleges in his Complaint (Doc. 1)
that on April 3 or 4, 2016, he was sleeping in the passenger seat of a rental car parked outside of
the Super 8 Motel on Washington Street in Junction City, Kansas. Plaintiff’s friend, Amanda
Bluthardt Silva, was sleeping in the driver’s seat. Two police officers arrived around seven or
eight a.m. in response to a call for a welfare check. The officers questioned Plaintiff and Silva,
and when an officer claimed he saw a gun in the car they ordered Plaintiff and Silva out of the car.
1 

The officers denied Plaintiff’s request to grab his pants and shoes out of the car and to use the
restroom in the motel. Plaintiff was placed in handcuffs and searched. Plaintiff attempted to run
with the handcuffs on and the officers tackled him, threw him to the ground, wrapped him in a
“restraint blanket” and threw Plaintiff in the police car.
Plaintiff was held on charges of drug possession, weapons possession and battery on a law
enforcement officer. Silva was charged with drug and weapons possession. Silva’s attorney filed
a motion to suppress the alleged illegal search and seizure, and her case was dismissed. Plaintiff’s
attorney, Defendant Linda Barnes, did not file a motion. Barnes told Plaintiff it would take a
month to hear such a motion, and encouraged Plaintiff to accept a plea deal if he wanted to go
home right away. Plaintiff entered a plea agreement and everything prior to his alleged battery of
a law enforcement officer was dropped.
Plaintiff alleges illegal search and seizure and wrongful imprisonment. Plaintiff claims his
attorney, Linda Barnes, coerced him into accepting a plea deal and provided ineffective assistance
of counsel. Plaintiff claims malicious prosecution by District Attorney Steve Opat. Plaintiff
names as Defendants: Linda Barnes, Public Defender; Steve Opat, District Attorney; the Geary
County Police Department; (fnu) Campbell, Geary County Police Officer; (fnu) Cathey, Geary
County Police Officer; and the Geary County Sheriff’s Department. Plaintiff seeks to have his
battery on a law enforcement officer charges removed from his record, and compensation for lost
time and wages, and slandering his name.
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

2 

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
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

3 

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).
III. Discussion
1. Request to have His State Criminal Charges Dismissed
Plaintiff seeks to have the criminal charges for battery of a law enforcement officer
dismissed or “removed from his record.” 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).

4 

It is unclear whether or not Plaintiff is in custody based on those charges or whether he is
being held on unrelated charges, and to what extent such relief would entitle Plaintiff to immediate
or speedier release. However, 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) (exhaustion of
state court remedies is required by prisoner seeking habeas corpus relief). To the extent 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. Plaintiff 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.

5 

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.
2. 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 Cty.
Bd. of Cty. Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998) (citing Monell v. Dep’t of Soc. Servs.,
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
6 

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 Geary County and no causal link between any such inadequacy and the
allegedly unconstitutional acts of the police officers.

Defendants Geary County Sheriff’s

Department and Geary County Police Department are subject to dismissal from this action.
Plaintiff has not shown that his state court defense attorney 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 Cty., 520 F.
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, Linda Barnes, are subject to dismissal for failure to state a claim.
3. Immunity
Plaintiff names the prosecutor, Steve Opat, as a defendant. Prosecutors are absolutely
immune from civil liability for damages for “acts undertaken by a prosecutor 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.” 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

7 

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 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. Plaintiff’s claims concerning his criminal case fall
squarely within the prosecutorial function. Plaintiff is directed to show cause why his claims
against Defendant Opat should not be dismissed based on prosecutorial immunity.
4. 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. Plaintiff has not identified
particular acts or omissions by each defendant. 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,
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.

8 

5. State Law Claims
Plaintiff alleges slander and defamation of character. State law violations are not grounds
for relief under § 1983. “[A] violation of state law alone does not give rise to a federal cause of
action under § 1983.” Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994) (citation omitted). This
Court is not obliged to exercise supplemental jurisdiction over any state law claims, even if valid,
given that Plaintiff's federal constitutional claims are subject to dismissal.

See 28 U.S.C.

§ 1367(c)(3).
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper Amended
Complaint upon court-approved forms that cures all the deficiencies discussed herein.1 Plaintiff
is given time to file a complete and proper Amended Complaint in which he (1) shows he has
exhausted administrative remedies for all claims alleged; (2) raises only properly joined claims
and defendants; (3) alleges sufficient facts to state a claim for a federal constitutional violation and
show a cause of action in federal court; and (4) alleges sufficient facts to show personal
participation by each named defendant.

1

To add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete amended
complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original complaint, and
instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no
longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended
complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to be
retained from the original complaint. Plaintiff must write the number of this case (18-3072-SAC) at the top of the
first page of his amended complaint and he must name every defendant in the caption of the amended complaint. See
Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended complaint, where
he must allege facts describing the unconstitutional acts taken by each defendant including dates, locations, and
circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional violation.

9 

If Plaintiff does not file an Amended Complaint within the prescribed time that cures all
the deficiencies discussed herein, this matter will be decided based upon the current deficient
Complaint.
IT IS THEREFORE ORDERED THAT Plaintiff is granted until August 13, 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 FURTHER ORDERED that Plaintiff is also granted until August 13, 2018, in
which to file a complete and proper Amended Complaint to cure all the deficiencies discussed
herein.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 13th day of July, 2018.

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

10