Jackson v. Atchison Police Department et al

Filing 10

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until July 7, 2021, in which to show good cause, in writing, why the Complaint should not be dismissed. Plaintiff's Motions for Leave to Proceed In Forma Pauperis (ECF Nos. 3 a nd 6 ) are granted. Plaintiff remains obligated to pay the $350.00 filing fee. The agency having custody of Plaintiff shall forward payments from Plaintiff's account in installments calculated under 28 U.S.C. § 1915(b)(2). The clerk is to transmit a copy of this order to Plaintiff, to the finance office at the institution where Plaintiff is currently confined, and to the Court's finance office. Signed by U.S. Senior District Judge Sam A. Crow on 06/07/21. Mailed to pro se party KaJuan M. Jackson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KAJUAN M. JACKSON,
Plaintiff,
v.

CASE NO. 20-3253-SAC

ATCHISON POLICE DEPARTMENT, et al.,
Defendants.

MEMORANDUM AND ORDER
TO SHOW CAUSE
Plaintiff KaJuan M. Jackson, a prisoner at the El Dorado Correctional Facility in El Dorado,
Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff requests leave
to proceed 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
On June 19, 2020, Plaintiff pled guilty to three felony counts in the District Court of
Atchison County, Kansas (fleeing and eluding, possession of methamphetamine, and criminal
possession of a weapon by a convicted felon). State v. Jackson, Atchison County Case No. 2020CR-60. The charges resulted from a traffic stop. In connection with the charges, Atchison police
officers or deputy sheriffs seized Plaintiff’s vehicle and various items of personal property
contained in the vehicle. According to Plaintiff, he was moving and had all of his personal property
in the vehicle. He asked family members to retrieve the vehicle and property about three weeks

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after he was arrested. When they attempted to do so, they were told it was all gone. Plaintiff
alleges none of the property was returned to him.
On August 17, 2020, Plaintiff initiated a civil action in the District Court of Atchison
County seeking the return of his property. See Atchison County District Court, No. 2020-CV000051. On April 13, 2021, the state court granted the defendants’ motion for summary judgment.
Plaintiff has not appealed the state court judgment.
In this action, Plaintiff claims the seizure of his property violated his civil rights. He seeks
the return of his property and damages for pain and suffering. He names as defendants the
Atchison Police Department; the Atchison County Sheriff’s Department; the Unified Government
of Atchison County, Kansas; Sherri Becker, District Attorney; Mike Wilson, Chief of Police; and
Travis Wright, Captain in the Sheriff’s Department.
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 employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff,
who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its
sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must
dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C.
§§ 1915A(b), 1915(e)(2)(B).
“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)

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(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
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.

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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
Plaintiff claims Defendants violated his constitutional rights based on the confiscation
and/or destruction of his personal property. He does not state which of his constitutional rights he
believes Defendants have violated. The Court construes the Complaint as asserting a Fourteenth
Amendment due process claim.
The Due Process Clause of the Fourteenth Amendment guarantees due process when a
person may be deprived of life, liberty, or property. U.S. Const. amend. XIV, § 1. “The
fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)); Dusenbery v. United States, 534 U.S. 161, 167 (2002) (quoting
United States v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993)) (“individuals whose
property interests are at stake are entitled to ‘notice and an opportunity to be heard.’”). However,
“[t]he Fourteenth Amendment does not protect against all deprivations” of property but only

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against those “accomplished ‘without due process of law.’” Baker v. McCollan, 443 U.S. 137,
145 (1979); Zinermon v. Burch, 494 U.S. 113, 126 (1990) (A constitutional due process violation
that is actionable under § 1983 “is not complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.”); see also Hudson v. Palmer, 468 U.S. 517,
533 (1984) (recognizing a due process deprivation does not occur “until and unless” the State
provides or refuses to provide a suitable post-deprivation remedy). In most circumstances, predeprivation process is expected. See, e.g., Mitchell v. W.T. Grant Co., 416 U.S. 600, 611 (1974).
However, where it is impossible to provide a meaningful pre-deprivation hearing, the state must
provide a meaningful post-deprivation hearing. Parratt v. Taylor, 451 U.S. 527, 541 (1981),
overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330 (1986).
In Parratt, the United States Supreme Court ruled that when a plaintiff alleges deprivation
of a property interest occurring as a result of “a random, unauthorized act,” the Fourteenth
Amendment's due process requirement is satisfied if the state provides an adequate postdeprivation remedy. Id. at 541–43; Hudson, 468 U.S. at 533; Zinermon, 494 U.S. at 128 (“Parratt
and Hudson represent a special case ... in which postdeprivation tort remedies are all the process
that is due, simply because they are the only remedies the State could be expected to provide.”);
Palmer v. Unified Government of Wyandotte County/Kansas City, Kansas, 72 F. Supp. 2d 1237,
1252 (D. Kan. 1999). Though Parratt involved negligent deprivations of property, the Court later
held that this reasoning also applied to intentional deprivations of property. Hudson, 468 U.S. at
533.
Accordingly, property loss claims are not cognizable under § 1983 in federal court when a
state's post-deprivation remedies are adequate to protect a plaintiff's procedural due process rights.
Where states provide an adequate remedy, that remedy itself constitutes the due process required

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by the Fourteenth Amendment. Parratt, 451 U.S. at 543–44; McCormick v. City of Lawrence,
Kansas, 253 F. Supp. 2d 1172, 1198–99 (D. Kan. 2003) (citing Hudson, 468 U.S. at 530–33), aff'd,
99 F. App’x 169 (10th Cir. 2004); see also Smith v. Colo. Dep't of Corr., 23 F.3d 339, 340 (10th
Cir. 1994) (“Fourteenth Amendment due process guarantees pertaining to property are satisfied
when an adequate, state postdeprivation remedy exists for deprivations occasioned by state
employees.”). Therefore, in order “to state a § 1983 claim, (Plaintiff) was required to plead the
inadequacy or unavailability of a post deprivation remedy.” Montana v. Hargett, 84 F. App’x 15,
16 (10th Cir. 2003) (unpublished) (citing Durre v. Dempsey, 869 F.2d 543, 548 (10th Cir. 1989)
(affirming dismissal of plaintiff's due process deprivation of property claim, stating that “[i]n order
to state a claim under § 1983, a complaint must allege facts sufficient to show deprivation, in this
case the lack of an adequate state remedy”)).
Kansas provides post-deprivation remedies to persons who believe they have suffered a
tortious loss at the hands of state officials. For example, K.S.A. § 60–1005 provides a procedure
for actions to recover personal property and specifically authorizes a replevin action for property
in the custody of an officer as a result of any legal process. See K.S.A. § 60–1005(c) (“If the
property the possession of which is sought is in the custody of an officer under any legal process
it shall nevertheless be subject to replevin under this section”). Kansas law also provides for
conversion actions (see, e.g., Herndon v. City of Park City, Kan., 2007 WL 3171524, *3 (assertion
that “property has either been lost or disposed of, or remains in possession of defendant or its
agents” represents the “textbook definition of conversion”)) and claims under the Kansas Tort
Claims Act. In addition, Kansas has a statutory scheme for returning property seized as evidence
(see K.S.A. 22-2512) and the Kansas Standard Asset Seizure and Forfeiture Act (see K.S.A. 604101, et seq.).

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These types of state procedures have generally been held sufficient to satisfy the
requirements of due process. Parratt, 451 U.S. at 543–44; see also Thompson v. City of Shawnee,
464 F. App’x 720, 724 (10th Cir. 2012); Harmon v. Williams, 77 F. App’x 440, 441–42 (10th Cir.
2003) (unpublished); Bridgeforth v. Field, 153 F.3d 726, *2 (10th Cir. July 17, 1998) (Table), cert.
denied, 525 U.S. 1154 (1999). Courts in this district have already specifically determined that
these Kansas procedures are adequate post-deprivation remedies for the type of harm alleged in
Plaintiff's complaint. Roman v. FNU LNU Unknown State & Loc. Offs., Barton Cty., Kan., No.
12-3065-SAC, 2012 WL 1970384, at *4–5 (D. Kan. June 1, 2012); Herndon, 2007 WL at 3171524
at *3 (citing, among other authorities, Kansas decisions that have recognized the availability of
sufficient post-deprivation procedures, including Wilkins v. Skiles, 2005 WL 3084902, at *8 (D.
Kan. Oct. 20, 2005) (finding that the plaintiff's Fourteenth Amendment procedural due process
claim was barred because the claim was based on an alleged failure to follow state mandated
procedures and the plaintiff had an adequate remedy under Kansas law based on a replevin action
or an action for conversion); Haynes, 2005 WL 2704956, at *5 (finding that the plaintiff's
Fourteenth Amendment due process claim was barred because the claims were based on random,
unauthorized acts, and plaintiff had an adequate state law remedy under the Kansas Tort Claims
Act or a claim for conversion); McCormick, 253 F. Supp. 2d at 1198–99 (same). These remedies
provide all the process that is due to Mr. Jackson.
Indeed, Plaintiff filed an action in State court to attempt to recover his property. See
Jackson v. Atchison Police Dep’t, et al., No. 2020-CV-000051, Atchison County District Court.
While Plaintiff was not successful, “[w]hether plaintiff succeeds in redressing his loss through the
available state remedies is immaterial; the existence of these alternate remedies bars a Section
1983 procedural due process claim.” Kalbaugh v. Holt, No. CIV-21-173-R, 2021 WL 1775824,

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at *3 (W.D. Okla. Apr. 6, 2021), report and recommendation adopted, No. CV-21-173-R, 2021
WL 1760045 (W.D. Okla. May 4, 2021), (citing Khalafala v. Scully, No. CV 08-6773 SJO (FMO),
2009 WL 2351726, at *2 (C.D. Cal. 2009); Broadnax v. Pugh, No. 5:15-03736, 2017 WL 5617768,
at *8 (S.D. W. Va. Oct. 24, 2017) (“The mere fact that ... Plaintiff may be unsuccessful [in
obtaining the return of his property] in his State case, does not establish that Plaintiff's property
was taken without due process.”)).
The Court finds that Plaintiff fails to state a plausible federal constitutional claim of denial
of due process for the reason that adequate post-deprivation remedies were available to Mr.
Jackson in state court.
IV. Response Required
For the reasons stated herein, 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.
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. Pending motions
Plaintiff has two motions for leave to proceed in forma pauperis pending (ECF Nos. 3 and
6). He has not filed the required financial information to support his motions. Plaintiff asserts he
has requested the information, but it is has not been provided to him by the facilities where he has
been confined.
The Court grants Plaintiff leave to proceed without prepayment of fees. This does not
relieve Plaintiff of the obligation to pay the full $350.00 fee. Instead, it merely entitles him to pay

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the fee over time through payments automatically deducted from his inmate trust account as
authorized by 28 U.S.C. § 1915(b)(2).

IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until July
7, 2021, in which to show good cause, in writing, why the Complaint should not be dismissed for
the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motions for Leave to Proceed In Forma
Pauperis (ECF Nos. 3 and 6) are granted. Plaintiff remains obligated to pay the $350.00 filing
fee. The agency having custody of Plaintiff shall forward payments from Plaintiff’s account in
installments calculated under 28 U.S.C. § 1915(b)(2). The clerk is to transmit a copy of this order
to Plaintiff, to the finance office at the institution where Plaintiff is currently confined, and to the
Court’s finance office.
IT IS SO ORDERED.
DATED: This 7th day of June, 2021, at Topeka, Kansas.

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

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