Kidwell v. McCarthy et al

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion to proceed in forma pauperis (Doc. 2 ) is granted. Plaintiff remains obligated to pay the $350.00 filing fee. On or before February 8, 2021, plaintiff shall show cause why this matter should not be dismissed for failure to state a claim for relief. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 01/07/21. Mailed to pro se party Ronald Lee Kidwell by regular mail. (smnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS RONALD LEE KIDWELL, Plaintiff, v. CASE NO. 21-3002-SAC TIMOTHY McCARTHY, et al., Defendants. NOTICE AND ORDER TO SHOW CAUSE This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff, a pretrial detainee, proceeds pro se. The court has reviewed plaintiff’s motion to proceed in forma pauperis and, finding he lacks the resources to pay an initial partial filing fee, grants the motion. Plaintiff remains obligated to pay the $350.00 filing fee. Nature of the Complaint Plaintiff alleges the defendant state district judge violated his constitutional rights by imposing excessive bail. He also sues Johnson County for unspecified violations of his rights. Screening A federal court must conduct a preliminary review of any case in which a prisoner seeks relief against a governmental entity or an officer or employee of such an entity. See 28 U.S.C. §1915A(a). Following this review, the court must dismiss any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from that relief. See 28 U.S.C. § 1915A(b). In screening, a court liberally construes pleadings filed by a party proceeding pro se and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “To state a claim for relief under Section 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). To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court accepts the well-pleaded allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Id. However, “when the allegations in a complaint, however true, could not raise a [plausible] claim of entitlement to relief,” the matter should be dismissed. Id. at 558. A court need not accept “[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, “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 Tenth Circuit has observed that the U.S. Supreme Court’s decisions in Twombly and Erickson set out a new standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii). See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted). Following those decisions, 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 (quotation marks and internal citations omitted). A plaintiff “must nudge his claims across the line from conceivable to plausible.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In this context, “plausible” 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 [the] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(citing Twombly, 550 U.S. at 1974). Discussion Plaintiff asks the court to change the judge in his state criminal action and seeks damages of one million dollars. Because the relief sought asks this court to intervene in a pending state criminal action, the plaintiff’s claims implicate the abstention doctrine under Younger v. Harris, 401 U.S. 37, 45 (1971). The Younger abstention doctrine is based on “notions of comity and federalism, which require that federal courts respect state functions and the independent operation of state legal systems.” Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Absent narrow exceptions for “bad faith or harassment,” prosecution under a statute that is “flagrantly and patently” unconstitutional, or other “extraordinary circumstances” involving irreparable injury, Younger, 401 U.S. at 46–55, abstention is appropriate when: (1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court affords an adequate forum to hear the claims raised in the plaintiff's federal complaint, and (3) the state proceedings implicate important state interests. Weitzel v. Div. of Occupational & Prof'l Licensing, 240 F.3d 871, 875 (10th Cir. 2001); Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). If applicable, the Younger abstention doctrine obligates the Court to dismiss an action in favor of an ongoing state proceeding. Weitzel, 240 F.3d at 875. Here, the first condition is met because plaintiff’s state criminal proceedings are pending. The second condition is met because Kansas has an important interest in enforcing its criminal laws through criminal proceedings in the state's 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). The third condition is met because the Kansas courts provide plaintiff with an adequate forum to litigate his constitutional claims by way of pretrial proceedings, trial, and, if he is convicted, direct appeal, 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 state court or by other (available) state procedures.”) (quotation omitted). Plaintiff's claims of excessive bail and judicial bias are insufficient to trigger any of the Younger exceptions. If this matter is construed as a petition for habeas corpus, plaintiff fares no better. A prisoner proceeding pretrial under 28 U.S.C. § 2241 must first exhaust available state court remedies. Likewise, the Younger doctrine prevents a court proceeding in habeas from intervening in a pending state court criminal matter unless exceptional circumstances are present. In Arter v. Gentry, the Tenth Circuit upheld a district court decision construing a pretrial detainee's claim of excessive bail as a claim under § 2241 and denying habeas relief for failure to exhaust state court remedies and noting that the Younger abstention doctrine, “compels us to avoid interference in ongoing state proceedings when the state courts provide an adequate forum to present any federal constitutional challenges.” Arter v. Gentry, 201 F. App'x 653, 653–54 (10th Cir. 2006) (unpublished). And in Tucker v. Reeve, a state pretrial detainee challenged his pretrial detention, alleging state officials set excessive bond, denied him a speedy trial, and engaged in illegal searches and seizures. Tucker v. Reeve, 601 F. App'x 760 (10th Cir. 2015) (unpublished). The Tenth Circuit upheld the district court's application of the Younger abstention doctrine. Id. at 760–61; Finally, plaintiff offers no grounds to hold Johnson County liable. For a county to be held liable for a constitutional violation, the violation must be the result of “action pursuant to official policy of some nature” of the county. Monell v. Dep't of Soc. Servs. Of the City of New York, 436 U.S. 658, 691 (1978). Plaintiff has not identified any official policy, nor does the present record reasonably suggest a constitutional violation has occurred. IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to proceed in forma pauperis (Doc. 2) is granted. Plaintiff remains obligated to pay the $350.00 filing fee. IT IS FURTHER ORDERED that on or before February 8, 2021, plaintiff shall show cause why this matter should not be dismissed for failure to state a claim for relief. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. IT IS SO ORDERED. DATED: This 7th day of January, 2021, at Topeka, Kansas. S/ Sam A. Crow SAM A. CROW U.S. Senior District Judge

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