Brown v. Stoss et al

Filing 16

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until December 23, 2024, in which to show good cause, in writing to the undersigned, why Plaintiff's Amended Complaint should not be dismissed for the reasons stated herein, and i n the Court's MOSC at Doc. 11 . Plaintiff is also granted until December 23, 2024, in which to file a complete and proper second amended complaint to cure all the deficiencies. Signed by District Judge John W. Lungstrum on 11/25/24. Mailed to pro se party Dontray L. Brown with § 1983 forms and instructions by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONTRAY L. BROWN,
Plaintiff,
v.

CASE NO. 24-3109-JWL

BRENDA K. STOSS, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Dontray L. Brown 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
Amended Complaint that are discussed herein. Plaintiff is also given the opportunity to file a
second amended complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. At the time of
filing, Plaintiff was in custody at the Saline County Jail in Salina, Kansas. Plaintiff is currently
out of custody. On July 24, 2024, the Court entered a Memorandum and Order to Show Cause
(Doc. 11) (“MOSC”) directing Plaintiff to show good cause why his Complaint should not be
dismissed or to file an amended complaint to cure the deficiencies. Plaintiff has filed an
Amended Complaint (Doc. 12). The Court’s screening standards are set forth in the MOSC.
The Court provided Plaintiff with the court-approved form and instructions for filing a
§ 1983 action. However, Plaintiff failed to submit his Amended Complaint on the courtapproved form that was provided.

1

Plaintiff alleges in his Amended Complaint that state court judges failed to follow
judicial procedure and ordered the immediate possession and/or seizure of Plaintiff’s real
property—a 1976 Cent HT Mobile Home. (Doc. 12, at 4.)

Plaintiff alleges that the Saline

County Sheriff’s Department and Jane/John Doe are responsible for the commencement of the
seizure of his property. Id. Plaintiff alleges that the District Court of Saline County, Kansas, and
judicial officers allowed an unconstitutional procedure to commence in their courtrooms. Id. at
5.
Plaintiff alleges that he was illegally detained in the SCJ, and Saline County Sheriff’s
Department transportation officers violated Plaintiff’s due process “pertaining to producing
warrants with state seal and or the lodging of detainers.” Id. Plaintiff claims that a Saline
County Municipal Court Judge “is not only responsible for four multiple unlawful arrest(s) &
detainment(s), but the recently imposed sentenced [sic] of 180 days that was ultimately
overturned by Habeas Corpus.” Id. at 6.
Plaintiff names as defendants: Brenda K. Stoss, Saline County Municipal Court Judge;
Paul J. Hickman, Saline County District Court Judge; Jacob E. Peterson, Saline County District
Court Judge; Jared B. Johnson, Saline County District Court Judge; John A. Reynolds, Reynolds
Law Office; Ellen M. Turner, Westwood Mobile Court; Scott Reed, Kansas Department of
Revenue; Jane or John Doe, Saline County Sheriff’s Department; Andrea Swisher, Saline County
District Court Judge; Amy Norton, Saline County District Court Judge; (fnu) Yates, Saline
County Sheriff’s Office Transportation Officer; and (fnu) Garcia, Saline County Sheriff’s Office
Transportation Officer. Plaintiff seeks declaratory relief, an award of his Notice of Claims; and
injunctive relief “including the consolidation of the appeals filed in case number(s) 2022-CR-

2

000299 and 2022-CR-000337 per Fed. R. Civ. P. 42(a)(1)(2)(3) & 28 U.S.C. 1331.” Id. at 31–
32.
Plaintiff’s claims focus on a 2022 action to either repossess or quiet title to Plaintiff’s
mobile home. See Doc. 12, at 13. Plaintiff claims that a default judgment was entered against
him on August 5, 2022, but then Defendants Johnson, Reynolds, Turner, and Reed, “decided that
maybe it would be best to reopen the matter under a new docket number,” disregarded all prior
orders (in Case Number 2022-LM-000624), and opened docket number SA-2022-CV-000201.
Id. at 15. Plaintiff alleges that Defendant Turner, and her attorney—Defendant Reynolds—filed
a petition to quiet title of the mobile home. Id. On February 9, 2023, an order of default
judgment was entered. Id. at 16. Several documents were entered by both parties, “but none that
would afford or extend the security of [Plaintiff’s] constitutional right(s) as an [sic] U.S. citizen.”
Id.
Plaintiff also alleges a claim based on his extradition from Erie, Pennsylvania, to the SCJ
on April 25, 2024.1 Id. at 18. Plaintiff alleges that there was no detainer or hold on him from the
State of Kansas. Id. at 19. Plaintiff alleges that John Doe from the Saline County Sheriff’s
Department arrived on April 23, but Plaintiff questioned the legality of the transfer, expressed
concerns about the warrant, and requested a valid “state sealed, dated, and signed” warrant. Id.
at 20. John Doe made a call to address the concerns and then told Erie Co. Prison Staff that it
was not possible to obtain a valid warrant and John Doe returned to Kansas. Id. Saline County
Sheriff’s Department Officers Yates and Garcia returned to Erie to transport Plaintiff to Kansas.
Id.

Plaintiff alleges that a dispute about the “blank invalid complaint(s) and ‘not actual

warrant(s)’” ensued and the officers became irate and one of them stated “you’re getting in the

1

In the following sentence, Plaintiff references April 2023. (Doc. 12, at 19.)

3

van whether we have to tie you up or whatever.” Id. at 21. Plaintiff calmed the situation and
asked Officer Yates to turn all the pages of the “alleged warrant” toward his body camera and to
go through them to show no Kansas seal was present, no actual signature or date of signature for
approval by any issuing authority could be seen, and that the procedure was not compliant with
law. Id. at 22. After Yates went through each page in vision of his body cam, Plaintiff loaded
into the van and was transported to the SCJ. Id.
As Count I, Plaintiff alleges violations of his 4th, 5th, 6th, and 14th Amendment rights by
all the Defendants based on his allegations. (Doc. 12, at 27.) As Count II, Plaintiff alleges that
Jane/John Doe commenced an unlawful seizure of his property without due process in violation
of his 4th, 5th, and 14th Amendment rights. Id. at 28. As Count III, Plaintiff alleges that
Defendant Scott Reed (Kansas Department of Revenue) had already denied the request to quiet
title, but then later “in a secret and or private conference decide[d] to go along with the
unconstitutional proceedings.” Id. As Count IV, Plaintiff alleges “vexatious litigation, hardship,
mental anguish, breach of contract legal malpractice, and fraud” against Defendants John A.
Reynolds and Ellen M. Turner. Id. at 29. As Count V, Plaintiff alleges “false imprisonment” by
Judges Swisher and Norton, and Officers Yates and Garcia, claiming they were aware that there
was “no official order for [Plaintiff’s] arrest by any presiding judicial officers” and they
continued the unconstitutional procedure “knowingly using a complaint as the arresting
warrant(s) for prosecution.” Id. at 29–30. As Count VI, Plaintiff alleges malicious prosecution
and false imprisonment by Judge Stoss, alleging that she not only disregarded the order
regarding the PFA and its dismissal, but also allowed the dismissal order to be used as evidence
of PFA violations. Id. at 31.

4

II. DISCUSSION
Plaintiff’s Amended Complaint is not on the court-approved form that was provided to
him. It also fails to cure the deficiencies noted in the Court’s MOSC. The Court will give
Plaintiff one last opportunity to submit an amended complaint on the court-approved form. Any
amended complaint must cure the deficiencies noted in the MOSC and in this Memorandum and
Order to Show Cause.
The Court found in the MOSC that the defendant judges are entitled to personal
immunity. “Personal immunities . . . are immunities derived from common law which attach to
certain governmental officials in order that they not be inhibited from ‘proper performance of
their duties.’” Russ v. Uppah, 972 F.2d 300, 302–03 (10th Cir. 1992) (citing Forrester v. White,
484 U.S. 219, 223, 225 (1988)). The Court found in the MOSC that Plaintiff’s claims against the
judges should be dismissed on the basis of judicial immunity. A state judge is absolutely
immune from § 1983 liability except when the judge acts “in the clear absence of all
jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (articulating broad immunity
rule that a “judge will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority . . . .”); Hunt v. Bennett, 17 F.3d 1263, 1266
(10th Cir. 1994); see also Nelson v. Skehan, 386 F. App’x 783, 787 (10th Cir. 2010)
(unpublished) (finding municipal judge absolutely immune from suit) (citing Stein v.
Disciplinary Bd. of Sup. Ct.of N.M., 520 F.3d 1183, 1190 (10th Cir. 2008)); see also Ledbetter v.
City of Topeka, Kan., 318 F.3d 1183, 1188–90 (10th Cir. 2003) (finding dismissal of claims
against municipal judge on immunity grounds was proper, and finding that municipal judge
obtains authority from state law and was not a municipal policymaker for purposes of § 1983
liability). Only actions taken outside a judge’s judicial capacity will deprive the judge of judicial

5

immunity. Stump, 435 U.S. at 356–57.
Despite the Court’s findings in the MOSC that the three judges named in Plaintiff’s
original Complaint were entitled to judicial immunity, Plaintiff names six state court judges as
defendants in his Amended Complaint. Plaintiff alleges no facts whatsoever to suggest that any
of the defendant judges acted outside of their judicial capacity. Plaintiff should show good cause
why his claims against the defendant judges should not be dismissed based on immunity.
Plaintiff also names as defendants a private citizen (Ellen M. Turner) and her attorney
(John A. Reynolds), who were involved in his state proceedings to quiet title. Plaintiff’s claims
against Turner and Reynolds relate to Case No. SA-2022-CV-000201 in the District Court of
Saline County, Kansas, seeking to quiet the title on the 1976 Cent HT mobile home. The
Petition to Quiet Title was filed by Defendant Turner, and Defendant Reynolds represented
Turner in the action. The Kansas Department of Revenue was also named as a defendant in the
action, and it was represented by Scott Reed—whom Plaintiff has also named as a defendant in
this civil rights case. On July 13, 2023, the Saline County District Court entered a Journal Entry
finding that the case was previously decided on February 8, 2023, and that the defendants “have
never filed any motion to set aside or a motion to reconsider or appeal of the Court’s ruling.”
The Journal Entry also dismissed the Petition for Quiet Title and Motion for Default Judgment
filed by Plaintiff. The docket for Case No. SA-2022-CV-000201 reflects that the case is “post
judgment” and does not reflect an appeal by Plaintiff or any other indication that the ruling has
been set aside.
Plaintiff has not shown that Defendants Turner and Reynolds were acting under color of
state law as required under § 1983. “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

6

the alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). Plaintiff seeks to hold private actors accountable under § 1983
and does not plead that the defendants acted under color of state law. Because Plaintiff’s
complaint fails to sufficiently allege they were acting under color of state law, this Court lacks
jurisdiction over these defendants under § 1983. See Whitehead v. Marcantel, 766 F. App’x 691,
700 (10th Cir. 2019) (“We conclude that the complaint failed to provide sufficient factual matter
to allege that Keefe was a state actor; therefore, the federal courts lack jurisdiction over this
claim.”). Plaintiff does not allege that these individuals were witnesses. “[A]ll witnesses enjoy
absolute immunity from civil liability under § 1983 for their testimony in a prior trial.” Hunt v.
Bennett, 17 F.3d 1263 (10th Cir. 1994) (citing Briscoe v. LaHue, 460 U.S. 325 (1983)).
Plaintiff’s claims against these private citizens are subject to dismissal.
The Court held in the MOSC that the Court may also be prohibited from hearing
Plaintiff’s claims regarding his state court criminal actions under Younger v. Harris, 401 U.S. 37,
45 (1971). The Court directed Plaintiff to clarify whether any of his proceedings are currently
ongoing. Part of Plaintiff’s request for relief seeks injunctive relief in the form of an order
consolidating “these instances including the consolidation of the appeals filed in case number(s)
2022-CR-000299 and 2022-CR-000337.”2 (Doc. 12, at 31.)
The Court notes that the docket for Case No. 2022-CR-000299 reflects that at the
preliminary hearing on June 13, 2024, the court granted the State’s motion to combine this case
with Case No. 2022-CR-000337.

On July 2, 2024, the Saline County District Court entered a

Journal Entry of Dismissal, dismissing the case “pursuant to consolidation of charges with case
2022-CR-000337.” The August 13, 2024 Journal Entry in Case No. 2022-CR-000337 provides
2

Plaintiff asks the Court to consolidate his state court appeals under Fed. R. Civ. P. 42. However, the Federal
Rules of Civil Procedure “govern the procedure in all civil actions and proceedings in the United States district
courts. . ..” Fed. R. Civ. P. 1. Rule 42 cannot be used to consolidate state court proceedings.

7

that Plaintiff pleaded no contest to Counts 1 and 2 and was sentenced to 30 days for each count
to run concurrently. The Saline County District Court found that Plaintiff had served his
sentence. Plaintiff filed a Notice of Appeal on August 13, 2024.
It is unclear whether Plaintiff’s criminal cases are currently pending on appeal. Kansas
Supreme Court Rule 2.04(a)(1), which is titled “Docketing an Appeal,” provides: “No later than
60 days after a notice of appeal is filed in a district court, the appellant must complete or obtain
and file with the clerk of the appellate courts” specific identified documents, including the notice
of appeal. Kan. S. Ct. R. 2.04(a)(1) (emphasis added). Plaintiff should indicate whether or not
his criminal cases are currently pending on appeal.
Because it appears that Plaintiff’s state court proceedings may be ongoing, the first and
second conditions for Younger abstention would be met because Kansas undoubtedly 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).

Likewise, the third condition would be met because Kansas courts

provide Plaintiff with an adequate forum to litigate his constitutional claims by way of pretrial
proceedings, trial, and direct appeal after conviction and sentence, 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 the state court or by other [available] state procedures.”) (quotation omitted); see
Robb v. Connolly, 111 U.S. 624, 637 (1984) (state courts have obligation ‘to guard, enforce, and
protect every right granted or secured by the constitution of the United States . . . .’”); Steffel v.
Thompson, 415 U.S. 452, 460–61 (1974) (pendant state proceeding, in all but unusual cases,

8

would provide federal plaintiff with necessary vehicle for vindicating constitutional rights).
The Court also advised Plaintiff in the MOSC that any claim challenging his state
sentence is not cognizable in a § 1983 action. 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).
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.

9

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 shown that his criminal conviction has been
overturned.
Plaintiff alleges that the detainer lacked a proper seal or signature, but does not explain
how the detainer violated his constitutional rights. An attack on his detainer would also be
barred by Heck. See McKee v. Denning, 2018 WL 398460, at *3 (D. Kan. 2018) (“If Plaintiff
has been convicted and a judgment on Plaintiff’s illegal detainer claim in this case would
necessarily imply the invalidity of that conviction, the claim may be barred by Heck.”); see also
Moody v. LaValley-Hill, 2021 WL 4745198, at *3 (E.D. Pa. 2021) (“Furthermore, to the extent [a
plaintiff] seeks damages for harm caused by the detainer, those claims are not currently
cognizable in a § 1983 action because success on those claims would imply the invalidity of the
detainer, which has not yet been invalidated through proper channels.”) (citing Heck v.
Humphrey, 512 U.S. 477 (1994); see also McBride v. O'Brien, 646 F. App’x 277, 278 (3d Cir.
2016) (per curiam) (“To the extent that McBride alleges that his confinement on the detainer
violates federal law, a favorable outcome would necessarily demonstrate the invalidity of his
detention.”); Jackson v. Alt, 236 F. App’x 850, 851 (3d Cir. 2007) (per curiam) (plaintiff who
sought damages for alleged due process and equal protection violations arising from what he
10

views as the improper issuance of a parole violator warrant, and the lodging of that warrant as a
detainer, could not proceed under § 1983 because he has not successfully challenged the warrant
in any state or federal proceeding) (citing Heck, 512 U.S. at 487); Munofo v. Alexander, 47 F.
App’x 329, 331 (6th Cir. 2002) (“Munofo’s § 1983 claim is not cognizable under Heck because
‘a judgment in favor of the plaintiff would necessarily imply the invalidity’ of the parole detainer
at issue here.”); Antonelli v. Foster, 104 F.3d 899, 900-01 (7th Cir. 1997) (Heck applied to
damages suit for arrest based on federal parole violator warrant); Zavalunov v. White, Civ. A.
No. 18-2438, 2020 WL 754415, at *6 (M.D. Pa. Feb. 13, 2020) (Heck “applies [to] detainer
actions”)).
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why Plaintiff’s Amended Complaint should not
be dismissed for the reasons stated herein, and in the Court’s MOSC. Plaintiff is also given the
opportunity to file a complete and proper second amended complaint upon court-approved forms
that cures all the deficiencies.

To add claims, significant factual allegations, or change

defendants, a plaintiff must submit a complete amended complaint. See Fed. R. Civ. P. 15. An
amended complaint is not simply an addendum to the original complaint, and instead completely
supersedes it. Therefore, any claims or allegations not included in the amended complaint are no
longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and
the amended complaint must contain all allegations and claims that a plaintiff intends to pursue
in the action, including those to be retained from the original complaint.
Plaintiff must write the number of this case (24-3109-JWL) at the top of the first page of
the amended complaint and must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the

11

amended complaint, where Plaintiff must allege facts describing the unconstitutional acts taken
by each defendant including dates, locations, and circumstances. Plaintiff must allege sufficient
additional facts to show a federal constitutional violation. Plaintiff is given time to file a
complete and proper amended complaint in which Plaintiff (1) raises only properly joined claims
and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation
and show a cause of action in federal court; and (3) alleges sufficient facts to show personal
participation by each named defendant. If Plaintiff does not file a proper second amended
complaint on the court-approved form within the prescribed time that cures all the deficiencies
discussed herein, this matter may be dismissed without further notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
December 23, 2024, in which to show good cause, in writing to the undersigned, why Plaintiff’s
Amended Complaint should not be dismissed for the reasons stated herein, and in the Court’s
MOSC at Doc. 11.
IT IS FURTHER ORDERED that Plaintiff is also granted until December 23, 2024, in
which to file a complete and proper second amended complaint to cure all the deficiencies
discussed herein.
The Clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated November 25, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

12