Miller v. Waller, et al

Filing 23

MEMORANDUM AND ORDER denying as moot 5 Plaintiff's Motion to Dismiss; denying as moot 19 Motion to Convene Three-Judge Panel; denying as moot 20 Motion to Stay ; denying as moot 20 Motion for Preliminary Injunction; denying 21 Plaint iff's Motion for Leave to File Supplemental Complaint; denying as moot 22 Amended Motion for TRO. This case is DISMISSED without prejudice Signed by District Judge Julie A. Robinson on 1/10/2013.Mailed to pro se party Terrell J. Miller, 550 N Nims, Apt 114, Wichita, KS 67203 by regular mail. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRELL J. MILLER,
Plaintiff,
vs.
JUDGE GREGORY WALLER, et al.,
Defendants.
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Case No. 12-1356-JAR-KMH

MEMORANDUM AND ORDER
This lawsuit was filed pro se and in forma pauperis by Terrell J. Miller, under 42 U.S.C.
§ 1983, stemming from state criminal charges of indecent liberties with a child pending against
him in Sedgwick County, Kansas. Plaintiff alleges that Defendants, two District Court Judges, a
Sedgwick County Assistant District Attorney, and his court-appointed Public Defender, obtained
numerous continuances in the criminal proceedings without his permission, violating his rights
under the Speedy Trial Act and the Fourteenth Amendment.1 On September 26, 2012, Plaintiff
filed a Motion for Leave to File Temporary Restraining Order (Doc. 4) asking this Court to
enjoin his criminal trial in Sedgwick County District Court, set to commence on October 1,
2012, which the Court denied on September 28, 2012 (Doc. 6). Plaintiff also moved for
dismissal of the criminal charges pending in Sedgwick County District Court Case No. 10-CR2405 (Doc. 5).
On October 4, 2012, the Court issued an Order directing Plaintiff to show good cause in
writing why the Younger doctrine does not require this Court to abstain and this case to be

1

Although Plaintiff names the State of Kansas as a defendant, his Complaint identifies the individual
defendants only, alleging that they were acting under the color of state law.

dismissed (Doc. 8). Plaintiff filed a 70-page response to the Court’s Order (Doc. 16) that
included a copy of his original Complaint and Motion for TRO, an Amended Motion for TRO,
an Amended Supplemental Pleading and a Motion for Leave to File a Supplemental Complaint.
Plaintiff seeks to add as defendants the Attorney General of Kansas, a detective that investigated
the case, and the victim and her mother, as well as a charge of conspiracy and constitutional
challenges to Jessica’s Law and K.S.A. §§ 21-3503 and 3504, under which he is charged with
indecent liberties with a child. Although difficult to decipher, it appears that he seeks to amend
his Complaint to allege that the indecent liberties charges, which define a child as over the age of
fourteen but under the age of sixteen, and which are subject to a mandatory 25-year sentencing
enhancement under Jessica’s Law, violate his right to due process if they are enforced without
determining whether the victim was “impure.” Plaintiff also filed a Motion to Convene ThreeJudge Panel (Doc. 19) and Motion for Leave to File Stay (Doc. 20) so that he could consult a
lawyer about pursuing a class action. Plaintiff continues to seek an injunction of his criminal
trial in Sedgwick County District Court, which was continued until February 4, 2013, after
Plaintiff was appointed new counsel.2
After reviewing Plaintiff’s response to the Order to Show Cause and proposed amended
pleadings, it is even more apparent that the Younger abstention doctrine precludes this Court
from interfering with the pending state court proceedings by granting the equitable relief
requested when such relief could adequately be sought before the state court.3 Although leave to
amend a complaint under Fed. R. Civ. P. 15(a) is freely given when justice so requires,

2

The Court takes judicial notice of the docket sheet in Sedgwick County District Court Case No. 10-CR-

2405.
3

Younger v. Harris, 401 U.S. 37 (1971); Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999).

2

Plaintiff’s proposed supplemental pleading, like is original Complaint, is futile.4 Abstention is
appropriate only absent a showing of bad faith prosecution, harassment, or a patently
unconstitutional rule.5 Younger requires a federal court to abstain when “(1) there is an ongoing
state criminal, civil or administrative proceeding, (2) the state court provides an adequate forum
to hear the claims raised in the federal complaint, and (3) the state proceedings ‘involve
important state interests, matters which traditionally look to state law for their resolution or
implicate separately articulated state policies.’”6 Once these three conditions are met, Younger
abstention is non-discretionary and, absent extraordinary circumstances, a district court is
required to abstain.7
This case involves ongoing state court criminal proceedings in which the State of
Kansas’s interest in enforcing its criminal code is at stake. Plaintiff also has the opportunity to
raise constitutional issues and appeal those issues to the state appellate courts if he believes they
are wrongly decided. Although Plaintiff asserts that the charges were brought to harass him and
that there has been a conspiracy to obstruct justice and spoliation of evidence, his mere
allegations do not meet his heavy burden to overcome the bar of Younger abstention.8 Nor are
the charging statutes or Jessica’s Law patently unconstitutional, as the Kansas Supreme Court

4

Anderson v. Merrill Lynch Pierce, Fenner, & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008).

5

Phelps v. Hamilton, 59 F.3d 1058, 1064 (10th Cir. 1995).

6

Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999) (quoting Taylor v.
Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997), cert. denied, 523 U.S. 1005 (1998)).
7

Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003) (citation

omitted).
8

Phelps v. Hamilton, 59 F.3d at 1066.

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recently held.9 Accordingly, the Younger doctrine requires dismissal of this action.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Leave
to File Supplemental Complaint (Doc. 21) is DENIED;
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice.
Plaintiff’s Motion to Dismiss the criminal charges (Doc. 5), Amended Motion for TRO (Doc.
22), Motion to Convene Three-Judge Panel (Doc. 19), and Motion to Stay (Doc. 20) are
DENIED as moot.
IT IS SO ORDERED.

Dated: January 10, 2013
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

9

State v. Woodward, 280 P.3d 203 (Kan. 2012).