Goings v. Sumner County District Attorney's Office et al
Filing
25
MEMORANDUM AND ORDER granting 20 Motion to Dismiss. Plaintiffs' amended complaint is hereby dismissed for failure to state a claim upon which relief can be granted. The court shall also dismiss this case based upon the application of Younger abstention. Signed by District Judge Richard D. Rogers on 12/9/2013.Mailed to pro se party Joseph Goings by regular mail (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH GOINGS,
)
)
)
)
)
)
)
)
)
)
_
Plaintiff,
v.
SUMNER COUNTY DISTRICT ATTORNEY’S
OFFICE; KERWIN SPENCER,
Defendants.
Case No.13-1107-RDR
MEMORANDUM AND ORDER
This
initiated
case
arises
against
the
from
criminal
plaintiff
in
proceedings
state
court.
that
were
Plaintiff,
proceeding pro se, brings this action against the Sumner County
District
Attorney=s
Office
and
Kerwin
Attorney for Sumner County, Kansas.
Spencer,
the
County
This matter is presently
before the court upon defendants= motion to dismiss.
Defendants contend that plaintiff=s amended complaint fails
to state a claim upon which relief can be granted.
motion, defendants raise three arguments.
In their
First, they contend
that the ASumner County District Attorney=s Office@ is not an
entity capable of being sued.
claims
against
immunity.
defendant
Finally,
they
Second, they contend that any
Spencer
are
assert
that
barred
the
doctrine compels dismissal of this action.
by
prosecutorial
Younger
abstention
I.
ATo survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to >state a claim
for relief that is plausible on its face.=@
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A[T]he mere metaphysical possibility that
some plaintiff could prove some set of facts in support of the
pleaded
claims
is
insufficient;
the
complaint
must
give
the
court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.@
Ridge
at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). AThe court’s function on a Rule 12(b)(6) motion is not to
weigh
potential
evidence
that
the
parties
might
present
at
trial, but to assess whether the plaintiff=s complaint alone is
legally sufficient to state a claim for which relief may be
granted.@
Cir.
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
2003).
In
determining
whether
a
claim
is
facially
plausible, the court must draw on its judicial experience and
common sense.
Iqbal, 556 U.S. at 678.
All well-pleaded facts
in the complaint are assumed to be true and are viewed in the
light most favorable to the plaintiff.
See Zinermon v. Burch,
494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813
(10th
Cir.
1984).
Allegations
2
that
merely
state
legal
conclusions, however, need not be accepted as true.
See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A court liberally construes a pro se complaint and applies
Aless
stringent
lawyers.@
standards
Erickson
v.
than
Pardus,
formal
551
pleadings
U.S.
89,
drafted
94
by
(2007).
Nonetheless, a pro se litigant=s Aconclusory allegations without
supporting factual averments are insufficient to state a claim
upon which relief can be based.@
Hall, 935 F.2d at 1110.
The
court Awill not supply additional factual allegations to round
out a plaintiff=s complaint or construct a legal theory on a
plaintiff=s
behalf.@
1173B74 (10th
Whitney
v.
New
Mexico,
113
F.3d
1170,
Cir. 1997).
II.
The
following
complaint.
facts
are
drawn
from
plaintiff=s
amended
In January 2013, a criminal complaint was filed
against plaintiff in Sumner County District Court.
Plaintiff,
proceeding pro se, subsequently sought discovery in the case.
The state court judge initially granted plaintiff=s motion, but
later set the order aside when he became aware that the order
had
been
entered
without a hearing.
without
mutual
consent
of
the
parties
A hearing was then set in March 2013.
and
Prior
to the hearing, plaintiff caused a subpoena duces tecum to be
served on a Wellington, Kansas police officer asking him to
3
Aany
bring
case.@
and
all
evidence
relevant
to
Plaintiff=s
The officer did not appear at the hearing.
criminal
Plaintiff
contends that defendant Spencer instructed the officer not to
appear.
Plaintiff=s motion for discovery was not granted at the
hearing.
Plaintiff
hearing.
filed
the
instant
action
four
days
after
the
He asserts two claims in his amended complaint under
42 U.S.C. ' 1983.
In his first claim, he contends that defendant
Spencer violated his 14th Amendment right to due process by (1)
enacting
and
consistent
following
with
K.S.A.
discovery
23-3212;
procedures
and
(2)
which
telling
are
not
Wellington
police officers that they did not have to comply with subpoenas
issued by plaintiff.
that
the
train,
Sumner
supervise
In the second claim, plaintiff alleges
County
and
District
discipline
Attorney=s
its
Office
employees
failed
regarding
to
(1)
their discretionary administrative actions; (2) protections of
the
United
States
Constitution;
(3)
violations
of
discovery
under Kansas law; and (4) violations of Kansas law regarding
defendant Spencer=s actions.
Plaintiff seeks declaratory and
injunctive relief along with compensatory and punitive damages.
III.
A.
The arguments asserted by the defendants are well-founded.
4
There is no serious argument that the instant action should not
be dismissed.
The court will briefly discuss the arguments
raised by the parties.
The
defendants
first
contend
that
the
ASumner
County
District Attorney=s Office@ is not an entity capable of being
sued.
The court agrees.
Generally, governmental sub-units are
not separate suable entities that may be sued under ' 1983. See
Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985)(AThe >City
of Denver Police Department= is not a separate suable entity@).
Under
Kansas
law,
absent
a
specific
statute,
subordinate
governmental agencies do not have the capacity to sue or be
sued.
Mason
v.
Twenty-Sixth
Judicial
District,
670
F.Supp.
1528, 1555 (D.Kan. 1987); Hopkins v. State, 237 Kan. 601, 702
P.2d 311, 316 (1985).
Actions against Kansas district attorney=s
offices
attorney=s
and
county
offices
have
routinely
ben
dismissed because they are not entities capable of being sued.
See
Fugate
v.
Unified
Government
of
Wyandotte
County/Kansas
City, 161 F.Supp.2d 1261, 1266-67 (D.Kan. 2001)(AWyandotte County
District Attorney=s Office@ not an entity capable of being sued);
Whayne
v.
State
of
Kansas,
980
F.Supp.
387,
392
(D.Kan.
1997)(AShawnee County Prosecuting Attorneys@ was not a recognized
entity capable of being sued).
Plaintiff has pointed to no Kansas statute that would allow
5
an action against the Sumner County Attorney=s Office.
Rather,
plaintiff has chosen to raise arguments based upon the Eleventh
Amendment.
Amendment
The defendants, however, have not asserted Eleventh
immunity
as
a
basis
for
dismissal
here.
The
defendants have argued simply that the Sumner County District
Attorney=s
Office
is
not
an
entity
capable
of
being
sued.
Because the Kansas legislature has not authorized suits against
district or county attorneys= offices, plaintiff=s attempted claim
against
the
Sumner
County
District
Attorney=s
Office
must
be
dismissed.
B.
The
court
next
turns
is
to
the
entitled
defendants=
to
argument
absolute
that
defendant
Spencer
prosecutorial
immunity.
The defendants contend that prosecutorial immunity
applies to Spencer=s decisions regarding discovery provided to
plaintiff in plaintiff=s criminal case.
The defendants further
argue that plaintiff cannot avoid the prosecutorial immunity bar
by challenging Spencer=s discovery policy.
contend
that
Spencer
is
immune
for
any
Finally, defendants
counsel
he
gave
to
subpoenaed witnesses.
AProsecutors are entitled to absolute immunity for their
decisions
to
prosecute,
their
investigatory
or
evidence-gathering actions, their evaluation of evidence, their
6
determination
of
whether
probable
cause
exists,
and
determination of what information to show the court.@
v.
Board
of
County
Com=rs.,
582
F.3d
1155,
their
Nielander
(10th
1164
Cir.
2009)(citing Imbler v. Pachtman, 424 U.S. 409, 425-28 (1976)).
The
test
is
a
functional
one
which
focuses
on
activities
Aintimately associated with the judicial phase of the criminal
process. . . .@
Imbler, 424 U.S. at
430. The focus, therefore,
is Anot on the harm that the conduct may have caused or the
question whether it was lawful.@ Buckley v. Fitzsimmons, 509 U.S.
259, 271 (1993). The Supreme Court in Imbler put it as follows:
[A] prosecutor inevitably makes many decisions that
could engender colorable claims of constitutional
deprivation. Defending these decisions, often years
after they were made, could impose unique and
intolerable burdens upon a prosecutor responsible
annually for hundreds of indictments and trials.
Imbler, 424 U.S. at 425-26.
There
is
little
question
that
prosecutorial
immunity
applies to Spencer=s decisions regarding the decisions to provide
discovery
to
the
plaintiff.
The
actions
taken
by
Spencer
during the course of plaintiff=s criminal action were undertaken
by him during the course of his prosecution of the plaintiff.
Such actions fall within the scope of prosecutorial immunity.
See U.S. ex rel. Price v. McFarland, 2004 WL 3171649 at * 7
(D.Kan.
2004)(absolute
immunity
7
applies
to
allegations
that
prosecutor
hindered
plaintiffs=
access
to
discovery
in
state
court proceedings).
Plaintiff seeks to avoid the application of prosecutorial
immunity
by
indicating
that
he
is
challenging
Adiscovery
the
policy@ formulated by Spencer prior to the time that plaintiff
was
charged.
The
court
finds
no
merit
to
this
argument.
Plaintiff cannot avoid the operation of absolute immunity by
attempting to limit his focus to the policy rather than the
decisions made pursuant to that policy.
divorce
his
claims
from
his
ongoing
Plaintiff=s efforts to
state
court
prosecution
leaves him without an injury in fact and, therefore, without
standing.
If he were not being prosecuted in Sumner County, he
would have no right to complain about the discovery policies of
the County Attorney’s office.
Moreover, plaintiff=s efforts to
shift the focus from Spencer=s specific decisions in his criminal
case
to
the
formulation
of
the
policy
that
decisions does not provide any help to plaintiff.
immunity
is
no
less
available
if
the
guided
those
Prosecutorial
prosecutor=s
discovery
decisions are made pursuant to a standing policy, rather than on
an individual basis.
AIn analyzing the rational underpinnings of
absolute prosecutorial immunity in this context, there is >no
meaningful distinction between a decision on prosecution in a
single instance and decisions formulated as a policy for general
8
application.=@ Roe v. City & County of San Francisco, 109 F.3d
578, 583 (9th Cir. 1997)(citation omitted); see also Eisenberg v.
District Attorney of County of Kings, 847 F.Supp. 1029, 1037-38
(E.D.N.Y.
1994)(development
associated
with
the
of
actual
policy
conduct
that
of
the
is
intimately
prosecution
is
protected by prosecutorial immunity).
Plaintiff=s
officers
attempted
not
to
claim
to
that
appear
compel
at
Spencer
the
their
prosecutorial immunity.
advised
hearings
attendance
subpoenaed
at
is
which
also
police
plaintiff
barred
by
Plaintiff has not offered any specific
argument to counter the defendants= contention that this claim is
barred by prosecutorial immunity.
Rather, plaintiff argues that
this claim is part of his discovery claim.
there
is
additional
evidence
within
the
He asserts that
Wellington
Police
Department that is relevant to his criminal case and Spencer is
violating his constitutional right to be heard in court.
All Aacts undertaken by a prosecutor in preparing for the
initiation of judicial proceeding or for trial, and which occur
in the course of his role as an advocate for the State, are
entitled to the protections of absolute immunity.@
U.S. at 273.
Buckley, 509
Prosecutorial immunity applies to a determination
by a prosecutor that a witness need not appear to testify, even
if that advice is wrong.
See Lerwill v. Joslin, 712 F.2d 435,
9
438 (10th Cir. 1983)(A[S]ince a prosecutor=s immunity is absolute,
it applies no matter how obvious it is to the prosecutor that he
is acting unconstitutionally and thus beyond his authority.@).
C.
Lastly, the court considers the defendants= contention that
Younger abstention compels dismissal of this action.
Although
the court has already dismissed the claims made by plaintiff,
the
court
believes
that
some
comment
must
also
be
made
concerning Younger abstention.
The abstention doctrine set forth in Younger v. Harris, 401
U.S. 37 (1971) prevents a federal court in most circumstances
from directly interceding in ongoing state criminal proceedings.
Further, the Younger abstention doctrine applies while a case
works
its
way
through
defendant is convicted.
of
City
of
New
the
state
appellate
process,
if
a
New Orleans Pub. Serv., Inc. v. Council
Orleans,
491
U.S.
350,
369
(1989).
Only
in
extraordinary circumstances will the Younger doctrine not bar
federal interference with ongoing state criminal proceedings.
Younger, 401 U.S. at 45.
The Younger doctrine is based Aon
notions of comity and federalism, which require federal courts
to
respect
state
functions
and
the
independent
operation
of
state legal systems.@ Phelps v. Hamilton, 122 F.3d 885, 889 (10th
Cir.
1997)(citing
Younger,
401
10
U.S.
at
44B45)).
Under
the
doctrine
established
in
Younger,
abstention
is
appropriate
whenever there exists (1) ongoing state proceedings, (2) which
implicate
courts
important
afford
an
state
interests,
adequate
forum
to
(3)
wherein
present
the
the
state
applicant=s
federal constitutional challenges. Middlesex County Ethics Comm.
v. Garden State Bar Ass=n, 457 U.S. 423, 432 (1982); Taylor v.
Jaquez, 126 F.3d 1294, 1297 (10th
Cir. 1997), cert. denied, 523
U.S. 1005 (1998).
All
here.
three
First,
of
the
the
aforementioned
pleadings
criminal case is ongoing.
conditions
indicate
that
are
the
present
plaintiff=s
Second, the state court in which the
criminal prosecution is proceeding is an adequate forum to hear
plaintiff=s
complaints
subpoenas.
Finally,
about
the
discovery
State
of
and
Kansas=
the
issuance
of
prosecution
of
plaintiff for violation of its criminal laws involves important
state interests.
Plaintiff has suggested that he is not asking the court to
interfere
with
state
court
proceedings.
plaintiff=s pleadings, this court cannot agree.
Based
upon
the
He is asking for
this court to determine that he should have received or should
be receiving discovery materials in the state court proceedings.
He is also asking the court to determine that the subpoenas
issued in those proceedings were valid and should have been
11
honored.
criminal
He is also asking the court to determine that the
case
should
never
have
been
filed.
There
is
no
question that he is asking this court to enter rulings which
will impact the underlying criminal case.
extraordinary
frustrations
circumstances
do
not
present
amount
to
The court finds no
here.
Plaintiff=s
Aextraordinary
circumstances@
warranting federal intervention and oversight over an ordinary
state court prosecution.
Given the important state interest in
enforcement of its criminal laws, and recognizing that the state
courts
matters,
are
we
prepared
believe
to
that
fully
the
address
proper
the
merits
exercise
of
of
these
discretion
weighs in favor of abstention and dismissal of this federal
case.
IT IS THEREFORE ORDERED that defendants= motion to dismiss
(Doc. # 20) be hereby granted.
Plaintiffs= amended complaint is
hereby dismissed for failure to state a claim upon which relief
can be granted.
The court shall also dismiss this case based
upon the application of Younger abstention.
IT IS SO ORDERED.
Dated this 9th day of December, 2013, at Topeka, Kansas.
s/ Richard D. Rogers
Richard D. Rogers
United States District Judge
12
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