Campbell v. Sage et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including July 6, 2018, in which to show good cause, in writing, why Plaintiff's complaint should not be dismissed. Plaintiff's motion to appoint counsel 3 is denied without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 06/06/18. Mailed to pro se party Brian A. Campbell by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN A. CAMPBELL,
Plaintiff,
v.

CASE NO. 18-3096-SAC

R.S. SAGE, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Brian A. Campbell, an inmate at the Sedgwick County Jail in Wichita, Kansas,
brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. He proceeds in forma pauperis. He has
also filed a motion to appoint counsel (Doc. 3). For the reasons discussed below, Plaintiff is ordered

to show cause why his complaint should not be dismissed, and his motion is denied.
I. Nature of the Matter before the Court
Mr. Campbell’s complaint (Doc. 1) alleges his constitutional rights were violated by
officers of the Augusta, Kansas Police Department. He claims officers conducted an illegal search
and seizure of property on March 9, 2016, leading to further investigation of Plaintiff and his arrest.
Plaintiff ultimately plead guilty to criminal use of a credit card without consent of the owner and
identity theft and was sentenced to serve 21 months. Plaintiff names as defendants Sergeant R.S.
Sage, Captain B.A. Relp, Sergeant E.C. McCluskey, Officer M.T. Mekel, Officer D.L. Strobe,
Officer T.R. Tombaugh, and Officer D.K. Keith.
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In Count I of his complaint, Plaintiff alleges that Defendants Meckel and McCluskey ran
license plate searches on vehicles parked on his property without legal justification. He further
alleges they searched and seized undisclosed property without a warrant.
In Count II, Plaintiff claims that when he was arrested on May 16, 2016, he was told by
Defendant Relp that the Augusta Police Department had been watching his house because “no one
knew him” and “you cannot be black in a small town that nobody knows anything about.”
According to Plaintiff, Defendant Relp further stated that the Augusta Police Department “had
nothing better to do than pick Plaintiff’s life apart.” Plaintiff alleges that Defendant Relp and
Defendant Sage failed to charge “the white individuals that had committed the same conduct as
myself and Cassandra Smith, that are black.”
In Count III, Plaintiff alleges the Augusta Department of Public Safety violated Plaintiff’s
constitutional rights by allowing the individual defendants’ unlawful conduct to continue.
Plaintiff asserts Defendants have violated his rights under the Equal Protection Clause of
the Fourteenth Amendment, as well as the Fourth and Fifth Amendments. He seeks compensatory
damages in the amount of $2.5 million.
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); 28 U.S.C. § 1915(e)(2)(B).

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“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
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

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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
After reviewing Plaintiff’s complaint with the standards set out above in mind, the Court
finds that the complaint is subject to summary dismissal under 28 U.S.C. § 1915A and 28 U.S.C.
§ 1915(e) because Plaintiff’s claims are premature under the principles of Heck v. Humphrey.
Under the Heck doctrine, when a state prisoner seeks damages in a lawsuit under § 1983,
his complaint must be dismissed where a judgment in his favor would necessarily imply the
invalidity of his conviction or sentence, unless the plaintiff can show that the conviction or
sentence has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). As
explained by the Tenth Circuit:

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In Heck v. Humphrey, the Supreme Court held that in order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court’s issuance of
a writ of habeas corpus, 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S. 477, 48687 (1994) (footnote omitted).
Reed v. McCune, 298 F.3d 946, 953-54 (10th Cir. 2002).
The purpose behind Heck is “to prevent litigants from using a § 1983 action, with its more
lenient pleading rules, to challenge their conviction or sentence without complying with the more
stringent exhaustion requirements for habeas actions.” Johnson v. Pottawotomie Tribal Police
Dep't, 411 F. App'x 195, 198 (10th Cir. 2011), quoting Butler v. Compton, 482 F.3d 1277, 1279
(10th Cir. 2007).
Claims that are subject to the Heck bar have not yet accrued and therefore are premature.
Such claims are dismissed without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065
(10th Cir. 1996)(“When a § 1983 claim is dismissed under Heck, the dismissal should be without
prejudice.”).
The allegations in Count I are related to a search of Plaintiff’s home that occurred on March
9, 2016. The only details Plaintiff provides are that Defendants Meckel and McCluskey ran license
plate searches on vehicles parked on Plaintiff’s property and conducted an illegal search and
seizure of property without a warrant. While he does not describe what property was searched or
what was seized, he does state that the search and seizure lead to his subsequent arrest and
conviction. See Doc. 1, at 2 (“Based off [the illegal search and seizure on March 9, 2006] Captain
B.A. Relph launched an investigation against Campbell.”); Id. at 4 (“Plaintiff was arrested by the
Augusta Dept. of Public Safety, based on items seized on March 9, 2016 in violation of his
rights.”). Hence, a judgment here that the search was constitutionally deficient would imply that
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Plaintiff’s conviction is invalid. See Trusdale v. Bell, 85 F. App'x 691, 693 (10th Cir. 2003)(holding
that prisoner's § 1983 claim alleging an unlawful search was barred by Heck because evidence
obtained pursuant to the search led to his convictions).
Because Plaintiff has not shown that his conviction has already been invalidated, whether
reversed on direct appeal, expunged by executive order, called into question by a federal court’s
issuance of a writ of habeas corpus, or otherwise invalidated, this claim appears to be barred by
Heck. See Heck, 512 U.S. at 487. Unless Plaintiff can show either (1) that his conviction did not
result, at least in part, from evidence obtained during the search on March 9, 2016, or (2) that his
conviction has already been invalidated, this count is subject to dismissal as premature under Heck.
In Count II, Plaintiff brings a selective enforcement claim. Selective enforcement is
generally a complete defense to a criminal charge. See Schwartz v. New Mexico Corr. Dep't Prob.
& Parole, 384 F. App'x 726, 730 (10th Cir. 2010) (comparing selective enforcement to selective
prosecution and quoting Kramer v. Village of N. Fond du Lac, 384 F.3d 856, 862 (7th Cir. 2004)
for the proposition that “[s]elective prosecution and entrapment are complete defenses to a crime.
If [a defendant] had successfully asserted either one of them at his trial, [he] would not have been
convicted.”); Gibson v. Superintendent of New Jersey Dep't of Law and Public Safety, 411 F.3d
427, 440-41 (3d Cir. 2005), cert. denied, 126 S. Ct. 1571 (2006) (“[I]f a person can demonstrate
that he was subjected to selective enforcement in violation of his Equal Protection rights, his
conviction will be invalid.”). Selective enforcement may also be the basis of a § 1983 claim. In
either case, the required proof is the same: Mr. Campbell would need to demonstrate that the
defendants’ actions had a discriminatory effect and were motivated by a discriminatory purpose.
Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003).

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Assuming for the sake of argument that Plaintiff could successfully prove selective
enforcement in this § 1983 action, such a result would obviously call into question the validity of
his conviction. As a result, Heck also bars Plaintiff’s selective enforcement claim. See Schwartz,
384 F. App'x at 730 (finding Heck bars § 1983 claim for selective enforcement in probation
revocation context because of availability of habeas relief where revocation is shown to be
discriminatory). See also Gibson, 411 F.3d at 441 (applying Heck to find that plaintiff's § 1983
racial discrimination selective enforcement equal protection claim did not accrue until his
conviction was vacated); Rogers v. Illinois Department of Corrections, 160 F. Supp. 2d 972, 977
(N.D. Ill. 2001) (finding the Heck doctrine applies to § 1983 selective prosecution claims).
In Count III, Plaintiff attempts to bring a claim against the Augusta Police Department for
lack of supervision. However, he has not named the police department as a defendant, and even
if he had, a municipal police department cannot be held separately liable in an action under § 1983
and thus is not a proper defendant. See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985)
(dismissing § 1983 claims against Denver Police Department as non-suable entity), vacated and
remanded on other grounds sub nom. Tyus v. Martinez, 475 U.S. 1138 (1986) (mem.); see also
Stump v. Gates, 777 F. Supp. 808, 816 (D. Colo. 1991) (“[L]ocal government departments have
no greater separate identity from cities than do their officials when they are acting in their official
capacities.”) (citing Brandon v. Holt, 469 U.S. 464, 472 and n. 21 (1985)), aff'd, No. 92-1134,
1993 WL 33875, at *3 (10th Cir. Feb. 11, 1993).
Because “the allegations in [Plaintiff’s] complaint, however true, could not raise a claim
of entitlement to relief” at this time, dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).

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IV. Response Required
For the reasons stated herein, Plaintiff’s complaint is subject to dismissal under 28 U.S.C.
§§ 1915A(b) and 28 U.S.C. § 1915(e). 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.
V.

Plaintiff’s Motion to Appoint Counsel (Doc. 3)
The Court has considered Plaintiff’s Motion to Appoint Counsel (Doc. 3). 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, 617 (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 appointment of counsel. Steffey v. Orman, 461 F.3d
1218, 1223 (10th Cir. 2006), citing 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 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). In deciding whether to
appoint counsel, the Court has considered “the merits of the 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.” Rucks, 57 F.3d at 979; Hill, 393 F.3d at 1115. The Court concludes that
because Plaintiff’s claims are premature under Heck, the appointment of counsel is not warranted.
Plaintiff’s motion is denied.

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IT IS THEREFORE ORDERED that Plaintiff is granted to and including July 6, 2018,
in which to show good cause, in writing, why Plaintiff’s complaint should not be dismissed for the
reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel (Doc. 3) is
denied, without prejudice.
IT IS SO ORDERED.
DATED: This 6th day of June, 2018, at Topeka, Kansas.

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

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