United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This matter was filed pro se as a civil rights complaint pursuant to 42 U.S.C. § 1983 by an inmate of the Shawnee County Jail, Topeka, Kansas. Mr. Hachmeister sues various Topeka Police Department (TPD) officers based upon their actions during searches and seizures that resulted in state criminal charges being brought against him. He also sues the District Attorney prosecuting his criminal case. The relief sought includes an injunction prohibiting the State from proceeding with the criminal prosecution and money damages. Having considered all materials filed, the court finds that plaintiff has not satisfied the statutory filing fee prerequisite and fails to allege facts that would justify this federal court's intervention in ongoing state criminal proceedings, and that his damages claims are barred by Heck. Plaintiff is given time to satisfy the filing fee and to show cause why this action should not be dismissed for the reasons discussed herein.
Plaintiff has filed a Motion for Leave to Proceed without Prepayment of Fees (Doc. 2), but his motion is incomplete. 28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil action without fees submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing" of the action "obtained from the appropriate official." 28 U.S.C. § 1915(a)(2). The "Work with Fund Ledger" provided by plaintiff is for 5 rather than 6 months, is not certified, and includes no monthly balances. He is given time to provide the financial information required by federal law, and warned that if he fails to comply within the prescribed time, this action may be dismissed without further notice.
Furthermore, § 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposit or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of the civil action. The court will determine an appropriate partial fee once the requisite financial information is received.
Plaintiff is reminded that under § 1915(b)(1), being granted leave to proceed without prepayment of fees will not relieve him of the obligation to pay the full fee. Instead, it entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account.
ALLEGATIONS AND CLAIMS
Plaintiff alleges the following in his complaint and motion for immediate injunctive relief. On September 10, 2011, he discovered the body of his mother in her home that they shared. He put his Gateway laptop computer on the kitchen table to pick up the phone and call 911. The TPD took his Gateway computer that day without probable cause. However, this computer was not searched until December.
On December 6, 2011, after Mr. Hachmeister became a suspect in his mother's murder, "TPD obtained an illegal search warrant" to search plaintiff's home and car that was authorized by defendant Spradling. This warrant did not meet the "4th Amendment particularity requirement" in that it was "too general" and improperly authorized a search for evidence without listing a crime or statute. That day it was used to seize "computers and data storage devices" from plaintiff's home, including plaintiff's Lenovo laptop computer, which was on the inventory. It was also used to "seize" plaintiff's Gateway computer taken by TPD in September 2011. Plaintiff never gave TPD authority to search his Gateway computer. Defendant Detective Dickey was the affiant on this warrant and affidavit and executed the warrant at plaintiff's residence. Pursuant to this warrant, defendant Detective Arensdorf executed an unlawful search and seizure of plaintiff's auto and person.
On December 13, 2011, TPD "got a warrant to search these illegally seized items." The scope of this warrant was for homicide evidence only. With this warrant, the TPD searched plaintiff's Gateway computer and allegedly found child pornography terms and images. Defendant Detective Gifford exceeded the scope of this warrant "when he found child porn terms." Gifford testified at a hearing that when he searched the computer with a filter for terms related to the homicide he "found" terms indicative of child porn. Defendant Winkelman assisted Gifford in this search. "They" used the evidence from this illegal search to criminally charge plaintiff and to slander his name "in order to taint the homicide jury pool." "TPD then used the fruits' of 3 illegal searches and seizures... to obtain a 4th warrant (Jan 4, 2012) which finally gave them a proper warrant, " but "one predicated upon 3 illegalities."
Defendant District Attorney Taylor's indifference, tacit approval, or failure to train and supervise led to defendant Spradling authorizing the "obviously unconstitutional" December 6 warrant. The judge in Case No. 12-CR-471 said the warrants looked proper and denied Mr. Hachmeister's motion to suppress without findings of fact or conclusions of law.
As Count I, plaintiff claims violation of his constitutional right to be free from unreasonable searches and seizures. As factual support for this claim, he refers to the allegedly illegal searches and seizures that resulted from the two December 2011 warrants. As Count II, plaintiff claims violation of his right to due process, likewise based upon the two December warrants. As Count III, plaintiff claims "conspiracy to violate civil rights." In support, he alleges that defendants Spradling, Dickey, Arensdorf, Gifford and Winkelman agreed to commit a crime in that they knowingly either authorized the "general warrant" or exceeded the scope of the other. As Count IV, plaintiff claims "invasion of privacy." In support, he alleges that defendants Dickey and Arensdorf used the overbroad Dec. 6 warrant to enter his residence or automobile and that defendants Gifford and Winkelman exceeded the scope of the Dec. 13 warrant by searching for child pornography terms. As Count V, plaintiff claims "trespass" and again alleges that Dickey and Arensdorf used the overbroad Dec. 6 warrant to enter his home and automobile. As Count VI, plaintiff claims "intentional infliction of emotional distress." In support of this count, he alleges that on October 4, 2011, he told Dickey he did not like cops and knew three women were quitting the D.A.'s office due to sexual harassment. He also alleges that the overbroad Dec. 6 warrant was "intentionally" authorized by the "DA's office" to obtain "anything to nail" him, to slander him, and to damage his personal relationships because the homicide case is "extremely circumstantial." As Count VII, plaintiff claims "wrongful arrest." In support, he alleges that defendant Arensdorf seized his person on Dec. 6 pursuant to the "unlawful general warrant, " and that his arrest on March 19, 2012 on charges in Case No. 12-CR-471 resulted from "government illegal actions." As Count VIII, plaintiff claims "wrongful imprisonment." In support, he alleges that he was imprisoned from March 2012 through November 2013 as the result of illegal acts taken by the D.A.'s office and the TPD in connection with the two December warrants. As Count IX, plaintiff claims "malicious or wrongful prosecution." In support, he alleges that the Dec. 6 warrant did not authorize seizure of any objects not located at Hachmeister's residence on that date, and that defendant Taylor is prosecuting charges that were "not under investigation" until the Dec. 6 warrant was used to "reseize" his computer already held in TPD lock-up. He further alleges that Taylor knew the Dec. 6 warrant was unconstitutionally overbroad and that the scope of the Dec. 13 warrant was exceeded, but cared only about headlines and tainting the jury pool for the homicide case, and that Taylor's prosecution of case No. 12-CR-471 is in bad faith. As Count X, plaintiff claims "slander." In support, he repeats that defendant Taylor and TPD knew the first warrant was unconstitutional and that the scope of the second warrant was exceeded. He also alleges that "all defendants" know that if plaintiff is convicted in Case No. 12-CR-471, his convictions "will never stand on appeal" due to "illegal evidence." In addition, he alleges that the D.A. and TPD only want to "besmirch" his name and reputation, destroy his familial relationships and friendships, and "paint him as a monster who is capable not only of matricide but a sexual pervert to boot" in order to "taint the jury pool" in the homicide case.
Plaintiff filed a motion to suppress in his criminal case that was heard and denied. He was found guilty of over 100 counts of child exploitation in Case No. 12-CR-471.
The relief sought by Mr. Hachmeister in his complaint is "an immediate temporary restraining order and/or injunctive relief prohibiting the State from proceeding with the prosecution" of Case No. 12-CR-471; the return of "all objects, information, or evidence" obtained with the two December 2011 warrants; and "compensatory and punitive damages as a result of defendants illegal actions." In his "Motion for Temporary Restraining Order and/or Injunctive Relief" (Doc. 3) plaintiff asks the court to order the return of "all contents of subsequent computer searches... or evidence derived therefrom" and "all items listed" on the Dec. 6, 2011 warrant, to prohibit the use of those items as evidence in "either Case No. 12-CR-471 or Case No. ...