United States District Court, D. Kansas
ELGIN R. ROBINSON, JR., Plaintiff,
EMERY GOAD, Defendant.
MEMORANDUM AND ORDER
CROW, U.S. Senior District Judge
matter is a civil rights claim filed under 42 U.S.C. §
1983 by a prisoner in state custody. On February 14, 2017,
U.S. Magistrate Judge Waxse directed plaintiff to submit an
initial partial filing fee and to show cause why this matter
should not be dismissed for failure to state a claim for
relief (Doc. #5). Plaintiff has submitted the initial partial
filing fee as directed, and the court grants leave to proceed
in forma pauperis.
also has submitted two responses to the order to show cause
(Docs. #6 and #7). The Court has reviewed the responses and
enters the following order.
sues Emery Goad, a private investigator, alleging violation
of his rights under the Fifth, Sixth, and Fourteenth
Amendments. The materials in the record show that defendant
Goad was retained by plaintiff's criminal defense team
during his criminal case. In 2008, Goad provided information
obtained during discovery to a reporter who published a news
article discussing the information.
2013, the Office of the Kansas Attorney General Private
Detective Licensing Unit issued a summary order on a
complaint filed by plaintiff establishing as a condition to
defendant's continued licensure that during the ensuing
12 months he remain free from any violations of the state
Private Investigator Act and associated state regulations
(Doc. #6, pp. 3-10).
remedy provided by 42 U.S.C. § 1983 authorizes suits
only against persons acting under color of state law. See
McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir.
2011)(“Section 1983 provides a federal civil remedy for
the deprivation of any rights, privileges, or immunities
secured by the Constitution by an person acting under color
of state law.”)(internal quotation marks omitted). The
defendant, a private investigator, is not a state actor.
plaintiff can state a claim under Section 1983 by alleging
that a private citizen conspired with state actors to violate
his federal rights. See Beedle v. Wilson, 422 F.3d
1059, 1073 (10th Cir. 2005). To plead such a conspiracy, a
plaintiff may not rest on “mere conclusory allegations
with no supporting factual averments” but rather
“must specifically plead ‘facts tending to show
agreement and concerted action'.” Id.
fails to adequately plead a conspiracy. He alleges only
broadly that the defendant conspired with court-appointed
counsel and lead prosecutors (Doc. #6, pp. 1-2). The Court
notes that both the Kansas Court of Appeals and the Private
Detective Licensing Unit of the Office of the Kansas Attorney
General previously determined that petitioner had not
presented any evidence supporting a conspiracy.
affirming the denial of petitioner's post-conviction
challenge, the Kansas Court of Appeals summarized
correspondence from the Kansas Disciplinary
Administrator's Office finding no ethical violations by
petitioner's counsel “because they had no advance
knowledge of the investigator's communications with the
reporter, did not condone the investigator's actions, and
immediately fired the investigator when they learned what he
had done.” Robinson v. State, 367 P.3d 1284
(Table), 2016 WL 1169381 at *6 (Kan.App. Mar. 25, 2016).
the decision of the Private Detective Licensing Unit states,
in part, that “there is nothing offered by Robinson to
support an allegation that a conspiracy against Robinson
existed between Goad and the prosecution.” (Doc. #6,
Attach. p. 6.)
there is no specific allegation supporting plaintiff's
claim of a conspiracy, there is no legal ground for a claim
against defendant Goad under Section 1983.
event, however, plaintiff has failed to timely present a
claim under Section 1983. The statute of limitations for
claims brought under Section 1983 is “drawn from the
personal-injury statute of the state in which the federal
district court sits.” Mondragon v. Thompson,519 F.3d 1078, 1082 (10th Cir. 2008). In Kansas, the two-year