Gilmore v. Easter et al

Filing 17

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim. Plaintiff's motion for leave to proceed in forma pauperis (Doc. #11 ) is denied as moot. Plaintiff's motions (Docs. #5 , #6 , #8 , #9 , #10 , #13 , #15 and #16 ) are denied. Signed by District Judge John W. Lungstrum on 9/16/2022. Mailed to pro se party Christopher Gilmore by regular mail. (jal)

Case 5:22-cv-03181-JWL-JPO Document 17 Filed 09/16/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER GILMORE,
Plaintiff,
v.

CASE NO. 22-3181-JWL-JPO

JEFF EASTER, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, a detainee at the Sedgwick County Adult Detention Center in Wichita, Kansas
(“SCADC”), filed this pro se civil rights case under 42 U.S.C. § 1983. On August 30, 2022, the
Court entered a Memorandum and Order to Show Cause (Doc. 4) granting Plaintiff an
opportunity to show good cause why his Complaint should not be dismissed for the reasons set
forth in the MOSC. Plaintiff was also given the opportunity to file an amended complaint to cure
the deficiencies. This matter is before the Court for screening Plaintiff’s Amended Complaint
(Doc. 7). The Court’s screening standards are set forth in the MOSC.
The Court found in the MOSC that:

Plaintiff’s bald allegation of a conspiracy is

insufficient to state a claim; Plaintiff’s conspiracy allegation under § 1985(3) fails because
Plaintiff has not shown discriminatory animus against him based on his membership in a
protected class; Plaintiff has not alleged that staff at the SCADC prevented him from accessing
the courts or caused him actual injury; a § 1983 claim must be based on the violation of a
plaintiff’s personal rights and not the rights of someone else; to the extent Plaintiff seeks to
modify his bond in his criminal case, the Court would be prohibited from hearing Plaintiff’s
claim under Younger v. Harris, 401 U.S. 37, 45 (1971); Plaintiff’s request for compensatory

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damages is barred by 42 U.S.C. § 1997e(e), because Plaintiff has failed to allege a physical
injury; Plaintiff’s request for release must be brought in a habeas action; and this case cannot
proceed as a class action with any pro se plaintiff as class representative. (Doc. 4, at 4–12.)
Plaintiff’s Amended Complaint fails to cure the deficiencies set forth in the MOSC. He
continues to assert that he is bringing this action under 42 U.S.C. § 1985, without showing
discriminatory animus against him based on his membership in a protected class. Plaintiff
continues to make bald claims of conspiracy, alleging that “[i]t becomes clear that a conspiracy
to deprive rights, obstruct access to courts, obstruct the necessary access to materials to pursue
due process” and that “[m]ultiple agencies and individuals [are] working a common scheme to
prevent this plaintiff from prevailing or obtaining due process.” (Doc. 7, at 2.) The Court found
in the MOSC that to state a claim for conspiracy, Plaintiff must include in his complaint enough
factual allegations to suggest that an agreement was made. Gee v. Pacheco, 627 F.3d 1178, 1183
(10th Cir. 2010). A bare assertion of conspiracy, absent context implying a meeting of the
minds, fails to raise a right to relief above the speculative level. Id. Here, Plaintiff provides no
factual information whatsoever to demonstrate any type of agreement was made between
anyone.

Instead, he suggests that he will submit the supportive facts later, claiming that

“Extensive Documents Evidence in process of being compelled.” (Doc. 7, at 2.)
Plaintiff continues to make arguments about his bond in his ongoing state criminal
proceedings, claiming that the attorney for the Sheriff’s Office advised them not to allow
Plaintiff to electronically submit his “negotiable instruments” to the state court. Plaintiff has also
filed a motion for injunctive relief (Doc. 6) seeking an order from this Court directing the
Defendants to allow him to file documents electronically to the state court presiding over his
criminal case. Plaintiff has not indicated why these issues cannot be raised in his state criminal

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proceedings or why he cannot submit his documentation by other means.
The Court found in the MOSC that to the extent Plaintiff seeks to modify his bond in his
criminal case, the Court would be prohibited from hearing Plaintiff’s claim under Younger v.
Harris, 401 U.S. 37, 45 (1971). “The Younger doctrine requires a federal court to abstain from
hearing a case where . . . (1) state judicial proceedings are ongoing; (2) [that] implicate an
important state interest; and (3) the state proceedings offer an adequate opportunity to litigate
federal constitutional issues.” Buck v. Myers, 244 F. App’x 193, 197 (10th Cir. 2007)
(unpublished) (citing Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003);
see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).
“Once these three conditions are met, Younger abstention is non-discretionary and, absent
extraordinary circumstances, a district court is required to abstain.” Buck, 244 F. App’x at 197
(citing Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir.
2003)). The Court finds that Younger abstention is appropriate, and any request for injunctive
relief regarding his ability to electronically file documents in state court is denied.1
Plaintiff continues to allege a “Civil Rights/Elective Franchise” claim under 28 U.S.C.
§ 1343. (Doc. 7, at 6.) The Court found in the MOSC that Plaintiff fails to assert factual
allegations in support of these claims. Plaintiff fails to explain what each defendant did to
Plaintiff; when the defendant did it; how the defendant’s action harmed Plaintiff; and what
specific legal right the Plaintiff believes the defendant violated. See Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 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). In his Amended
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Plaintiff also mentions fraudulent warrants in some of his pleadings, but states that the state court judge
“corrected the error by quashing fraudulent warrants.” (Doc. 10, at 1.)
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Complaint, Plaintiff now claims that this claim will be supported by documentary evidence that
is being compelled through subpoenas currently filed with the Court. See Doc. 7, at 7 (stating in
his Amended Complaint that “any necessary evidence or supporting documents are
forthcoming”). Plaintiff has failed to state a claim for relief under 28 U.S.C. § 1343.
Plaintiff asserts that he was part of a PREA investigation in 2017, and Detective
Hollyfield and Lt. Taylor refused to adhere to PREA compliance standards. (Doc. 7, at 7.) The
Prison Rape Elimination Act (“PREA”) “authorizes the reporting of incidents of rape in prison,
allocation of grants, and creation of a study commission,” but there is nothing in the PREA to
indicate that it created a private right of action, enforceable under § 1983. Haffner v. Geary Cty.
Sheriff’s Dep’t, No. 18-3247-SAC, 2019 WL 1367662, at *4 (D. Kan. Mar. 26, 2019) (citations
omitted) (collecting cases). “Section 1983 imposes liability on anyone who, under color of state
law, deprives a person ‘of any rights, privileges, or immunities secured by the Constitution and
laws.’” Blessing v. Freestone, 520 U.S. 329, 340 (1997). “In order to seek redress through
§ 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of
federal law.” Id. (emphasis in original) (citing Golden State Transit Corp. v. Los Angeles, 493
U.S. 103, 106 (1989)). The Court concludes that, as a matter of law, Plaintiff cannot pursue a
§ 1983 claim based on Defendant’s alleged failure to comply with the PREA.
Furthermore, Plaintiff’s alleged violations occurring in 2017 would be barred by the
applicable two-year statute of limitations. The statute of limitations applicable to § 1983 actions
is determined from looking at the appropriate state statute of limitations and tolling principles.
See Hardin v. Straub, 490 U.S. 536, 539 (1989). “The forum state’s statute of limitations for
personal injury actions governs civil rights claims under both 42 U.S.C. § 1981 and § 1983. . . .
In Kansas, that is the two-year statute of limitations in Kan. Stat. Ann. § 60–513(a).” Brown v.

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Unified Sch. Dist. 501, Topeka Pub. Sch., 465 F.3d 1184, 1188 (10th Cir. 2006) (citations
omitted). The same two-year statute of limitations governs actions under 42 U.S.C. § 1985. See
Alexander v. Oklahoma, 382 F.3d 1206, 1212 (10th Cir.), rehearing denied, 391 F.3d 1155 (10th
Cir. 2004), cert. denied, 544 U.S. 1044 (2005).
Despite the reasoning set forth in the MOSC, Plaintiff continues to seek compensatory
damages and immediate release from custody. Plaintiff also asks that all defendants be subject to
restraining orders and be charged with crimes/disbarment. (Doc. 7, at 8.) As set forth in the
MOSC, Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because
Plaintiff has failed to allege a physical injury, and Plaintiff’s request for release must be brought
in a habeas action. In addition, this Court cannot order criminal charges and cannot order State
courts to open or close cases. See Presley v. Presley, 102 F. App’x 636, 636–37 (10th Cir. 2004)
(holding that any federal court order for “investigation or prosecution of various people for
various crimes” would “improperly intrude upon the separation of powers”); Alexander v. Lucas,
259 F. App’x 145, 148 (10th Cir. 2007) (holding that the Rooker-Feldman doctrine barred
plaintiff’s request that the federal district court order a State-court judge to grant relief).
Plaintiff still purports to bring this action as a class action, asking the Court to extend the
filing deadlines for amended complaints “or other documents” until January 1, 2023 (Doc. 9).
Plaintiff’s request for an extension is denied. The Court cautioned Plaintiff in the MOSC that he
cannot serve as a class representative, and he lacks standing to assert rights on behalf of other
inmates. Plaintiff continues to assert injuries and claims on behalf of other inmates. He claims
that “multiple defense attornies [sic] are aware of District Attornies [sic]coming into possession
of priveleged [sic] communications, known to be stolen and disseminated by Sheriff Dept
without an active subpoena or search warrant.” (Doc. 7, at 5.) Plaintiff does not suggest that

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this has ever happened to his privileged communications. In fact, he attaches a letter from his
attorney stating that the attorney is not going to have an email account with Plaintiff because he
is “aware of several instances where emails that should be confidential, have ended up in the
hands of the State inadvertently.” (Doc. 10–1, emphasis added.)
Although Plaintiff suggests that he has been denied meaningful access to the courts
(Doc. 7, at 7), he has filed a Complaint, an Amended Complaint, a response, and eleven motions
in this case. Despite the Court’s prior denial of Plaintiff’s motion to appoint counsel, he has filed
two additional motions to appoint counsel. (Docs. 10, 16.) Plaintiff has also filed two motions
to appoint special masters and amicus curiae. (Docs. 5, 8.) Plaintiff has also filed requests for
discovery, despite the fact that Defendants have not been served and this case has not survived
screening. (Docs. 13, 15.)
Plaintiff seems to view this case as a means to conduct discovery regarding the
circumstances surrounding the alleged death of another inmate in order to bring criminal charges
against the Defendants. See Doc. 5, at 3–4 (seeking the appointment of a special master and
stating that not a single inmate has been interviewed by any detectives overseeing the death of
the inmate); Doc. 8, at 1–2 (seeking the appointment of a special master and an investigation,
and stating that the facility and administration have an extensive history of covering up crimes,
mentioning the alleged death of the other inmate and the failure to interview inmates, and stating
that this case will require oversight and reports to the Court in order to convict the defendants);
Doc. 12, at 1 (stating in reference to the death of the other inmate, that he is “going to
continuously submit documents, affidavits, and anything tangiable [sic] that could be construed
as evidence,” stating that he “will be issuing affidavits for search warrants, search warrant
applications and other necessary documents giving Federal Agents authorization to effect search

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and arrest warrants on culpable parties,” and asking the Court to supply him with blank
subpoenas, search warrant applications, affidavits for search warrants, affidavits for probable
cause for arrest, and arrest warrants); Doc. 13 (seeking discovery regarding the PREA
investigation and assaults on other inmates); and Doc. 15 (seeking 16 blank subpoena forms and
asking the Court to contact the FBI and tell them to come see Plaintiff and to investigate the
death of the other inmate).
Plaintiff has failed to show good cause why this matter should not be dismissed for the
reasons set forth above and in the Court’s MOSC. This matter is dismissed for failure to state a
claim.

All of Plaintiff’s motions seeking the appointment of counsel, discovery, and the

appointment of a special master are denied. Plaintiff also filed a motion for leave to proceed in
forma pauperis (Doc. 11), but failed to include the financial information required by statute. In
light of the Court’s dismissal of this case, the motion is denied as moot.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for
failure to state a claim.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Doc. 11) is denied as moot.
IT IS FURTHER ORDERED that Plaintiff’s motions (Docs. 5, 6, 8, 9, 10, 13, 15 and
16) are denied.
IT IS SO ORDERED.
Dated September 16, 2022, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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