United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
In this action filed by a state prisoner as a civil rights complaint under 42 U.S.C. § 1983, Mr. Mondonedo attempts to sue his ex-wife Tiffany Noe for damages based on her alleged forgery of signatures on additional student loan applications submitted in his name. He also seeks to sue Keith C. Henderson based on allegations that Henderson conspired with defendant Noe to deprive plaintiff of his constitutional rights. In the Amended Complaint, Henderson was alleged to be an Assistant District Attorney in Shawnee County, Kansas, and the prosecutor in the state criminal case against Mr. Mondenedo.
With respect to defendant Noe, plaintiff's background allegations may be summarized as follows. On January 5, 2009, he discovered his then-wife's forgeries and telephoned her that he was coming home to discuss it. Upon his arrival, a Topeka police officer was waiting and took him in for questioning upon Noe's report of his sexual misconduct with her daughter. Plaintiff has remained incarcerated since that time. He alleges that he is currently indebted to Sallie Mae for the loan proceeds "stolen" by defendant Noe. In April 2009, defendant Noe "absconded" to Texas, where she currently resides. In November 2009, Mr. Mondonedo was convicted of 12 offenses "stemming from the sexual molestation of his underage stepdaughter" including Rape, Attempted Aggravated Incest, 6 counts of Aggravated Indecent Liberties with a child, and 2 counts of Criminal Sodomy with a child. See State v. Mondonedo, 2700 P.3d 1231, *1 (Kan.App. 2012), review denied (Kan. Apr. 8, 2013). He is currently serving sentences for these convictions. Defendant Noe and her daughter testified for the State at plaintiff's criminal trial.
Plaintiff seeks a declaration that his rights were violated; "actual damages" in the form of "restitution" for the money "stolen" by defendant Noe; and nominal, compensatory, and punitive damages for the denial of his rights, privileges, and legal remedies as well as mental and emotional injuries.
The court previously screened the Amended Complaint and entered a Memorandum and Order (hereinafter SCRNORD) requiring plaintiff to show cause why this action should not be dismissed. Plaintiff filed a Response (Doc. 10)(hereinafter RESP). Having considered the RESP together with all the materials in the file, the court dismisses this action for the reasons stated in the SCRNORD and herein, including lack of jurisdiction and failure to allege facts to support a federal constitutional claim against either defendant.
In his Amended Complaint, Mr. Mondonedo asserted jurisdiction under 28 U.S.C. §§ 1331 and 1332 based on alleged violations of federal and state criminal statutes and federal constitutional rights. In the SCRNORD, the court found that plaintiff (1) failed to establish federal question jurisdiction under § 1331, (2) failed to establish diversity jurisdiction under § 1332, (3) failed to allege facts establishing that defendant Noe acted "under color of state law, " and (4) that the damages claims against defendant Henderson were barred by prosecutorial immunity. Rather than specifically addressing each of these deficiencies, plaintiff repeats all the counts from his complaint in his Response together with the allegations, arguments, and statements made therein. When the repetitive allegations and arguments, bald statements, and legal conclusions are disregarded in plaintiff's Response, few additional allegations and arguments remain. It is apparent that Mr. Mondonedo disagrees with the court's findings in the SCRNORD, because he declares that he adequately alleged violations of his federal constitutional rights and his rights "created by federal statutes" by defendants and that defendants acted under color of state law. Each deficiency in the Amended Complaint is discussed below along with any counter argument or new facts discernible from plaintiff's Response.
Plaintiff was advised that the jurisdiction of a United States District Court is limited, and he bears the burden of demonstrating that jurisdiction exists. 28 U.S.C. § 1331 provides for "federal-question" jurisdiction, while 28 U.S.C. § 1332 provides for "diversity of citizenship" jurisdiction.
1. Federal Question Jurisdiction is not Established
In the Amended Complaint, plaintiff attempted to establish federal-question jurisdiction by citing numerous federal and state criminal statutes and claiming that defendants violated these laws. The court rejected this as a basis for federal-question jurisdiction because none of the cited statutes created a private cause of action. Plaintiff was informed that the "complaint must identify the statutory or constitutional provision under which the claim arises, and allege sufficient facts to show that the case is one arising under federal law." Martinez v. United States Olympic Comm., 802 F.2d 1275, 1280 (10TH Cir. 1986).
In his Response, plaintiff repeats that he stated a claim under § 1331 because his claims arise under federal laws. He then cites the same 7 federal criminal statutes from his Amended Complaint, and again claims that defendants violated his constitutional rights under these federal laws. He also cites the same 8 state criminal statutes and claims again that defendants violated these state laws. Mr. Mondonedo basically ignores the court's discussion and holding in the SCRNORD that the cited criminal provisions do not provide a basis for federal-question jurisdiction. The only addition in plaintiff's Response is the following statement:
All (federal) penal statutes presented by plaintiff in this case... are no part of this action as a civil action but rather presented as plaintiff's duty to set the record in favor... of the United States ...