Woods v. Crow et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion to proceed in forma pauperis (ECF No. 2 ) is granted. This matter is dismissed for failure to state a claim for relief. Plaintiff's motion to appoint counsel (ECF No. 4 ) is denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 9/9/2021. Mailed to pro se party Kishen Woods, Sr. by regular mail. (jal)

Case 5:21-cv-03063-SAC Document 5 Filed 09/09/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KISHEN WOODS, SR.,
Plaintiff,
v.

CASE NO. 21-3063-SAC

SAM A. CROW, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, a person held at the Larned State Hospital at the time of filing, brings this civil
action.1 Plaintiff proceeds pro se and seeks leave to proceed in forma pauperis.
I. Nature of the Matter before the Court
The Complaint was submitted on a civil complaint form. Plaintiff marked the jurisdictional
ground as being “violation of the civil or equal rights, privileges, or immunities accorded to the
citizens of, or persons within the jurisdiction of, the United States (28 U.S.C. § 1343).” ECF No.
1, at 3. The Complaint provides no coherent statement of a claim and names as defendants the
undersigned, a person described as a nurse, and an unnamed District Attorney. Id. at 2-3. Under
the portion of the form for damages, Plaintiff mentions he needs money from three people who are
not named as defendants for child support. Id. at 4.

1

Plaintiff purports to bring this action under Case No. 11 CR 3340. In that action, a criminal case brought in the
District Court of Sedgwick County, Kansas, Plaintiff was convicted of first degree murder and criminal possession
of a firearm. State v. Woods, 348 P.3d 583 (Kan. 2015).

1

Case 5:21-cv-03063-SAC Document 5 Filed 09/09/21 Page 2 of 3

II. Discussion
A complaint filed in forma pauperis may be dismissed if it fails to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). “Dismissal of a pro se complaint for failure
to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he
has alleged and it would be futile to give him an opportunity to amend.” Perkins v. Kan. Dep’t of
Corr., 165 F.3d 803, 806 (10th Cir. 1999). When reviewing a complaint’s sufficiency, the Court
“presumes all of plaintiff’s factual allegations are true and construes them in the light most
favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
Because Plaintiff proceeds pro se, the Court liberally construes his pleadings and holds
them “to a less stringent standard than formal pleadings drafted by lawyers.” Id. at 1110.
However, “[t]he broad reading of the plaintiff’s complaint does not relieve [plaintiff] of the burden
of alleging sufficient facts on which a recognized legal claim could be based.” Id.
In the Complaint, Plaintiff makes no plausible claim to show that his civil rights were
violated.
Also, he names the undersigned judge as a defendant. Generally, a judge shall disqualify
himself if he “[i]s a party to the proceeding.” 28 U.S.C. § 455(b)(5)(i). This provision mandates
recusal when a judge “[i]s a named defendant in the action before [him].” Akers v. Weinshienk,
350 F. App’x 292, 293 (10th Cir. 2009) (unpublished). However, “[a] judge is not disqualified
merely because a litigant sues or threatens to sue him.” Id. (quoting United States v. Grismore,
564 F.2d 929, 933 (10th Cir. 1977), cert. denied, 435 U.S. 954 (1978); see also Anderson v.
Roszkowski, 681 F. Supp. 1284, 1289 (N.D. Ill. 1988), aff’d, 894 F.2d 1338 (7th Cir. 1990) (Table)
(stating that § 455(b)(5)(i) has not been construed to require automatic disqualification, and to
guard against judge-shopping, “courts have refused to disqualify themselves under Section

2

Case 5:21-cv-03063-SAC Document 5 Filed 09/09/21 Page 3 of 3

455(b)(5)(i) unless there is a legitimate basis for suing the judge”) (citations omitted); United
States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“a judge is not disqualified by a litigant’s suit
or threatened suit against him”) (citations omitted); In re Murphy, 598 F. Supp. 2d 121, 124 (D.
Me. 2009).
In this case, the Court finds no basis to recuse. The Plaintiff’s allegations are entirely
incoherent and unsupported, and it is apparent that his identification of the undersigned as a
defendant is either an effort to judge-shop or a misunderstanding of the fundamental nature of a
civil rights action. Likewise, because it does not appear that Plaintiff could cure the primary defect
identified in this matter, namely, a complete lack of factual and legal support, the Court concludes
it is appropriate to dismiss this matter without allowing him the opportunity to amend the
Complaint. See McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365-66 (10th Cir. 1991)
(stating that dismissal with prejudice is appropriate when the defendants are immune from suit and
amendment of the complaint would be futile).
IT IS THEREFORE ORDERED that Plaintiff’s motion to proceed in forma pauperis
(ECF No. 2) is granted.
IT IS FURTHER ORDERED that this matter is dismissed for failure to state a claim for
relief.
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel (ECF No. 4) is
denied as moot.
IT IS SO ORDERED.
DATED: This 9th day of September, 2021, at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
3