Hinshaw v. Thomas et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion for leave to proceed in forma pauperis 3 is granted. Plaintiff remains obligated to pay the $350.00 filing fee in installments calculated under 28 U.S.C. § 19 15(b)(2). Plaintiff is granted until May 18, 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 04/20/18. Mailed to pro se party Scott Douglas Hinshaw by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SCOTT DOUGLAS HINSHAW,
Plaintiff,
v.

CASE NO. 18-3081-SAC

SIDNEY R. THOMAS, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE

Plaintiff Scott Douglas Hinshaw 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. The Court grants
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 3).
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 Ford County Jail in Dodge City, Kansas. Plaintiff names as Defendants:
District Court Judge Sidney R. Thomas; District Court Judge Van Z. Hampton; Assistant District
Attorney Kathleen Neff; and Assistant District Attorney Clay A. Kuhns. Although Plaintiff’s
allegations are confusing and conclusory, they appear to involve his arrest and state court
proceedings. Plaintiff alleges that “several years ago” he was “tazed in the middle of the night
on [his] bed.” Plaintiff alleges he later requested police protection from police brutality and was
arrested for disorderly conduct, which was dismissed by the appeal court. Plaintiff claims he has

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attempted to report numerous crimes, only to have the police show up at his home saying that
they do not work for him, and that he is harassing the police. Plaintiff takes issue with his arrest
and ongoing state criminal proceedings, including charges for giving a false alarm and
harassment.
Plaintiff alleges “theft by deception, slavery, sedition, communism, treason, invasion of
privacy” and various constitutional violations. Plaintiff seeks damages of “fifty billion dollars
bullion” for irreparable damages; “nine million dollars bullion” for 9 rights violated by public
servants; “a passport to a country of [his] choice to flee the corrupt law, courts and tyrant
Government so to restore [his] peace and dignity of a life time of communism and deceit of
public offices/officials/servants”; and “life imprisonment for all conspirators involved.” (Doc. 1,
at 6.)
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

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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,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the

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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
A. Eleventh Amendment Immunity
Although it is unclear whether Plaintiff sues any of the defendants in their official
capacity, a claim against state officials for monetary damages is barred by sovereign immunity.
An official-capacity suit is another way of pleading an action against the governmental entity
itself. Kentucky v. Graham, 473 U.S. 159, 165 (1985). “When a suit alleges a claim against a
state official in his official capacity, the real party in interest in the case is the state, and the state
may raise the defense of sovereign immunity under the Eleventh Amendment.” Callahan v.
Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (quotation omitted).

Sovereign immunity

generally bars actions in federal court for damages against state officials acting in their official
capacities. Harris v. Owens, 264 F.3d 1282, 1289 (10th Cir. 2001). It is well established that
Congress did not abrogate the states’ sovereign immunity when it enacted § 1983. Quern v.
Jordan, 440 U.S. 332, 338–45 (1979); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002).
The bar also applies when the entity is an arm or instrumentality of a state. Sturdevant v.
Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000).

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In determining whether an entity is an

instrumentality or arm of the state for purposes of Eleventh Amendment immunity, the Tenth
Circuit has established a two-part inquiry, requiring an examination of: (1) “the degree of
autonomy given to the agency, as determined by the characterization of the agency by state law
and the extent of guidance and control exercised by the state,” and (2) “the extent of financing
the agency receives independent of the state treasury and its ability to provide for its own
financing.” Duke v. Grady Mun. Sch., 127 F.3d 972, 974 (10th Cir. 1997) (citations omitted).
“The governmental entity is immune from suit if the money judgment sought is to be satisfied
out of the state treasury.” Id. (citations omitted).
Kansas state law clearly characterizes the district courts as arms of the state
government—part of a unified judicial branch along with the Kansas Supreme Court and Kansas
Court of Appeals. Wilkins v. Skiles, No. 02–3190, 2005 WL 627962, at *4 (D. Kan. March 4,
2005); see generally, KAN. CONST. art 3. The legislature defines “state agency,” for purposes
of the state workers’ compensation fund, as “the state, or any department or agency of the state,
but not including . . . the district court with regard to district court officers or employees whose
total salary is payable by counties.” K.S.A. 44–575(a). The only court personnel who are not
included in the judicial personnel pay system, and are instead paid by the county, are county
auditors, coroners, court trustees and personnel in each trustee’s office, and personnel
performing services in adult or juvenile detention or correctional facilities. K.S.A. 20–162(a),
(b). District court judges are state officials. Schroeder v. Kochanowski, 311 F. Supp. 2d 1241,
1256 (D. Kan. 2004), see also Sigg v. Dist. Court of Allen Cty., Kan., No. 11-2625-JTM, 2012
WL 941144, at *4 (D. Kan. March 20, 2012) (district court judge is a state official and official
capacity claims against judge for money damages are barred).

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Any official capacity claim against a state official for monetary damages is barred by
sovereign immunity.

Furthermore, state officers acting in their official capacity are not

considered “persons” against whom a claim for damages can be brought under § 1983. Will v.
Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). Any claim for monetary damages against
the state officials in their official capacities is subject to dismissal as barred by sovereign
immunity.
B. State District Court Judges
The state court judges are also 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 claims against the state court judges 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 capacity will deprive the judge of judicial immunity. Stump, 435 U.S. at 356–57.
Plaintiff alleges no facts whatsoever to suggest that the defendant judges acted outside of their
judicial capacities.
C. Assistant District Attorneys
Plaintiff’s claims against the Assistant District Attorneys fail on the ground of
prosecutorial immunity. Prosecutors are absolutely immune from liability for damages in actions

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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 Assistant District Attorneys Neff and Kuhns should not be dismissed based on
prosecutorial immunity.
D. Younger Abstention
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
based on harassment and making a false alarm are ongoing. An online Kansas District Court
Records Search indicates that the case is “pending” and reflects that a jury trial is scheduled to
begin on May 7, 2018.1 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

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See 2017-CR-000304, Ford County, Kansas, filed June 5, 2017.
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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.
“[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:

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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.
E. Frivolousness
The Court notes that Plaintiff’s instant case includes claims substantially similar to those
he recently raised in Hinshaw v. Hampton, Case No. 17-3129-SAC (D. Kan.). The Court
dismissed that case on January 23, 2018, for failure to state a claim.

Id. at Doc. 29.

“Repetitious litigation of virtually identical causes of action may be dismissed under § 1915 as
frivolous or malicious.” Winkle v. Hammond, 601 F. App’x 754, 754–55 (10th Cir. 2015)
(unpublished) (citing McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997) (internal
quotation marks and brackets omitted)).
IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for
the reasons stated herein. The failure to file a timely response may result in the dismissal of this
matter without additional prior notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 3) is granted. Plaintiff remains obligated to pay the $350.00
filing fee in installments calculated under 28 U.S.C. § 1915(b)(2).

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IT IS FURTHER ORDERED that Plaintiff is granted until May 18, 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 20th day of April, 2018.

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

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