Davis (ID 116257) v. Dalke et al

Filing 3

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is provisionally granted leave to proceed in forma pauperis. Plaintiff is granted until October 14, 2022, in which to show good cause, in writing to the undersigned, why Plaintiff's Complaint should not be dismissed. Signed by District Judge John W. Lungstrum on 09/19/22. Mailed to pro se party Joel Arthur Davis by regular mail. (smnd)

Case 5:22-cv-03204-JWL-JPO Document 3 Filed 09/19/22 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOEL ARTHUR DAVIS,
Plaintiff,
v.

CASE NO. 22-3204-JWL-JPO

REMINGTON DALKE, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Joel Arthur Davis is hereby required to show good cause, in writing to the
undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s
Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff claims his due process rights were violated at his sentencing in his state criminal
case. He names the county prosecutor and his defense attorney as the only defendants. Plaintiff
claims his attorney would not let him speak at his sentencing and “basically told [him] to shut
up.” (Doc. 1, at 3.) Plaintiff also claims ineffective assistance of counsel due to his attorney’s
failure to do anything for him, stating that his attorney “took [his] money and disappeared.” Id.
For relief, Plaintiff seeks to be resentenced or to have his sentence overturned, and to be released
from custody. Id. at 5.
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 an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“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)
(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

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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.
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
1. Habeas Nature of Claim and Heck Bar
Plaintiff filed his Complaint while in custody at the Rice County Jail in Lyons, Kansas.
An online search on the Kansas District Court Public Access Portal shows that Plaintiff was
sentenced in the District Court of Rice County and his probation was subsequently revoked.1 See
State v. Davis, Case No. 2019-CR-000071, District Court of Rice County, Kansas. Plaintiff

1

https://prodportal.kscourts.org/ProdPortal/Home/WorkspaceMode?p=0 (last visited September 16, 2022).
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appealed, and the Kansas Court of Appeals affirmed the judgment on July 22, 2022, and issued
its Mandate on September 13, 2022. Id. Plaintiff filed the instant Complaint on September 15,
2022. (Doc. 1.) According to the Kansas Adult Supervised Population Electronic Repository,
Plaintiff has been at the El Dorado Correctional Facility since September 15, 2022.2
To the extent Plaintiff challenges the validity of his sentence in his state criminal case, his
federal claim must be presented in habeas corpus. “[A] § 1983 action is a proper remedy for a
state prisoner who is making a constitutional challenge to the conditions of his prison life, but
not to the fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)
(emphasis added). When the legality of a confinement is challenged so that the remedy would be
release or a speedier release, the case must be filed as a habeas corpus proceeding rather than
under 42 U.S.C. § 1983, and the plaintiff must comply with the exhaustion of state court
remedies requirement. Heck v. Humphrey, 512 U.S. 477, 482 (1994); see also Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (exhaustion of state court remedies is required by
prisoner seeking habeas corpus relief); see 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of
available state court remedies). “Before a federal court may grant habeas relief to a state
prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner
must give the state courts an opportunity to act on his claims before he presents those claims to a
federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see
Woodford v. Ngo, 548 U.S. 81, 92 (2006); Rose v. Lundy, 455 U.S. 509, 518–19 (1982);
Therefore, any claim challenging his state sentence is not cognizable in a § 1983 action. Plaintiff
should show cause why his Complaint should not be dismissed as not properly brought in a
§ 1983 action.

2

https://kdocrepository.doc.ks.gov/kasper/search/detail?kdocNumber=116257 (last visited September 16, 2022).
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Likewise, before Plaintiff may proceed in a federal civil action for monetary damages
based upon an invalid conviction or sentence, he must show that his conviction or sentence has
been overturned, reversed, or otherwise called into question. Heck v. Humphrey, 512 U.S. 477
(1994). If Plaintiff has been convicted and a judgment on Plaintiff’s claim in this case would
necessarily imply the invalidity of that conviction, the claim may be barred by Heck. In Heck v.
Humphrey, the United States Supreme Court held that when a state prisoner seeks damages in a
§ 1983 action, the district court must consider the following:
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.
Id. at 487. In Heck, the Supreme Court held that a § 1983 damages claim that necessarily
implicates the validity of the plaintiff’s conviction or sentence is not cognizable unless and until
the conviction or sentence is overturned, either on appeal, in a collateral proceeding, or by
executive order. Id. at 486–87. Plaintiff has not alleged that the conviction or sentence has been
invalidated.
2. Improper Defendants
Plaintiff has named the county prosecutor and his defense attorney as the only two
defendants. Plaintiff’s claims against the county prosecutor fail on the ground of prosecutorial
immunity. Prosecutors are absolutely immune from liability for damages in actions asserted
against them for actions taken “in initiating a prosecution and in presenting the State’s case.”
Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Plaintiff’s claims concerning his criminal case
fall squarely within the prosecutorial function. Plaintiff is directed to show cause why his claims
against the county prosecutor should not be dismissed based on prosecutorial immunity.
Plaintiff has not shown that his state court defense attorney was acting under color of
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state law as required under § 1983. See Polk Cty. v. Dodson, 454 U.S. 312, 318–19, 321–23
(1981) (assigned public defender is ordinarily not considered a state actor because their conduct
as legal advocates is controlled by professional standards independent of the administrative
direction of a supervisor); see also Vermont v. Brillon, 556 U.S. 81, 91 (2009); Dunn v. Harper
County, 520 Fed. Appx. 723, 725-26, 2013 WL 1363797 at *2 (10th Cir. Apr. 5, 2013) (“[I]t is
well established that neither private attorneys nor public defenders act under color of state law
for purposes of § 1983 when performing traditional functions as counsel to a criminal
defendant.” (citations omitted)). A criminal defense attorney does not act under color of state
even when the representation was inadequate. Briscoe v. LaHue, 460 U.S. 325, 330 n.6 (1983).
Plaintiff’s claims against his defense attorney are subject to dismissal for failure to state a claim.
IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for
the reasons stated herein. Failure to respond by the deadline may result in dismissal of this
matter without further notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is provisionally
granted leave to proceed in forma pauperis.
IT IS FURTHER ORDERED that Plaintiff is granted until October 14, 2022, in which
to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated September 19, 2022, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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