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)

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