United States District Court, D. Kansas
Crow, U.S. District Senior Judge
a pro se action pursuant to 42 U.S.C. § 1983,
the civil damages provision of the Federal Wiretap Act, 18
U.S.C. § 2520 and Kansas law, K.S.A. 22-2518. Plaintiff
filed this case as a prisoner while facing criminal charges,
along with several other defendants, in U.S. v.
Banks, Case No. 13-40060 (“Banks”).
Plaintiff has been convicted in that case and his conviction
is now on appeal to the Tenth Circuit.
claims in his original complaint arise from one or more
wiretaps issued during the investigation leading to the
criminal charges in Banks. Plaintiff alleges that on
or about March 5, 2013, defendant Glen Virden, a KBI agent,
and defendant Steven Opat, the Geary County District
Attorney, applied for a wiretap which was approved by
defendant David R. Platt, Geary County District Judge.
Plaintiff contends that defendant Platt lacked the
“territorial jurisdiction” to grant the warrant
that was issued because it permitted the interception of
phone communications outside of Platt's judicial
district. Plaintiff also names T-Mobile USA, Junction City
Police Chief Timothy Brown, Junction City Police Detective
Alvin Babcock, and Riley County Police Department Director
Brad Schoen as defendants. The complaint indicates that all
of the individual defendants are being sued in their
individual and official capacities. The caption of the
complaint also lists the KBI, the Junction City Police
Department and the Riley County Police Department as
defendants. Plaintiff seeks damages as well as unspecified
injunctive and declaratory relief.
ORDER TO SHOW CAUSE
case is now before the court upon a Notice and Order to Show
Cause (NOSC) entered by the undersigned judge. Doc. No. 3.
Consistent with plaintiff's allegations, the NOSC
observed that, in plaintiff's criminal case, Judge
Crabtree of this Court held that wiretaps authorized by
defendant Platt violated the Kansas wiretap statute, K.S.A.
22-2514 et seq., to the extent that they intercepted
phone communications beyond the territorial jurisdiction of
Judge Platt's judicial district. Some recorded
conversations were suppressed by Judge Crabtree, while those
which occurred within Judge Platt's territorial
jurisdiction were not suppressed. See U.S. v. Banks,
93 F.Supp.3d 1237 (D.Kan. 2015). Nevertheless, the NOSC
suggested that plaintiff's complaint was deficient in
part because: immunity doctrines barred plaintiff's
claims for damages against defendants; personal participation
was not adequately alleged as to some defendants; illegal
policies were not alleged to support an official capacity
claim; defendant T-Mobile was exempt from liability because
it was following a court order; and plaintiff could not use
this litigation to attack rulings (or a conviction) in his
criminal case. The court directed plaintiff to show cause why
this case should not be dismissed.
has responded to the NOSC with a Statement of Facts (Doc. No.
4) and a Memorandum of Law (Doc. No. 4-1). These pleadings,
in addition to addressing plaintiff's wiretap claim,
attempt to add a claim that plaintiff was illegally denied
appointment of counsel by Judge Platt in state court.
court reviews plaintiff's response to the NOSC in light
of the court's obligation to screen plaintiff's
complaint according to the standards reviewed at pp. 5-6 of
DEFENDANT PLATT IS ENTITLED TO ABSOLUTE IMMUNITY AGAINST
LIABILITY IN HIS INDIVIDUAL CAPACITY
seeks to sue defendant Platt because he authorized a wiretap
or wiretaps outside his territorial jurisdiction and because
he refused to appoint counsel for plaintiff when criminal
charges were initially brought in state court. Obviously, these
are actions Platt took in his judicial capacity. “[A]
state judge is absolutely immune from § 1983 liability
except when the judge acts ‘in the clear absence of all
jurisdiction.'” Hunt v. Bennett, 17 F.3d
1263, 1266 (10thCir.) cert. denied, 513
U.S. 832 (1994)(quoting Stump v. Sparkman, 435 U.S.
349, 356-57 (1978)). “A judge will not be deprived of
immunity because the action he took was in error, was done
maliciously, or was in excess of his authority.”
Stump, 435 U.S. at 356. Because “some of the
most difficult and embarrassing questions which a judicial
officer is called upon to consider and determine relate to
his jurisdiction, the scope of the judge's jurisdiction
must be construed broadly where the issue is the immunity of
the judge.” Id. at 356 (interior quotation and
citation omitted). To determine whether a judge acted
“in the clear absence of jurisdiction, ” a court
looks “to the nature of the act itself, i.e., whether
it is a function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with
the judge in his judicial capacity.” Id. at
a wiretap order and denying appointment of counsel are
clearly actions normally performed by a judge and Judge Platt
did not rule in absence of all jurisdiction when he made the
orders. See Hicks v. Blythe, 1997 WL 8844 *2-3
(10th Cir. 1/9/1997)(finding immunity where
defendant judge allegedly increased the amount of bail
without the jurisdiction to do so); Duty v. City of
Springdale, Ark., 42 F.3d 460, 462-63 (8th
Cir. 1994)(distinguishing between acts performed in excess of
jurisdiction and those done in the absence of all
jurisdiction, where municipal court judge allegedly lacked
authority to issue an arrest warrant). Therefore, Judge Platt
is entitled to immunity against plaintiff's § 1983
claims. The application of judicial immunity applies as well
to plaintiff's claims under the federal and state wiretap
laws. See Dahl v. Charles F.Dahl, M.D., P.C. Defined Ben.
Pension Trust, 744 F.3d 623, 630 (10thCir.
2014)(approving application of quasi-judicial immunity to
claims under wiretap law made against an guardian ad litem);
Babb v. Eagleton, 614 F.Supp.2d 1232, 1238-40
(N.D.Okla. 2008)(quasi-judicial immunity is a defense to
liability under federal wiretap law); see also Garner v.
Wahl, 2005 WL 3098727 *6 (Kan. App. 11/18/2005)(applying
judicial immunity to state law claims against district court
judge accused of illegally impaneling a grand jury); see
generally Merryfield v. State, 2017 WL 945755 *2
(Kan. App. 3/10/17)(“[j]udicial immunity is
long-established law in Kansas”).
PLAINTIFF'S STATE LAW CLAIMS AND § 1983 CLAIMS
AGAINST STATE AGENCIES OR STATE OFFICIALS IN THEIR OFFICIAL
CAPACITY SHALL BE DISMISSED ON ELEVENTH AMENDMENT IMMUNITY
Platt, Opat and Virden are state officials for purposes of
Eleventh Amendment analysis. Therefore, state law and §
1983 damages claims against them in their official capacities
are claims against the State of Kansas and barred by the
Eleventh Amendment. See Raygor v. Regents of University
of Minnesota, 534 U.S. 533, 540-41 (2002)(state
law claims against nonconsenting state defendants in federal
court are barred by Eleventh Amendment); Will v. Michigan
Dept. of State Police, 491 U.S. 58, 66 (1989)(Eleventh
Amendment bars § 1983 actions against a State in federal
court); Ellibee v. Fox, 244 Fed.Appx. 839, 843-44
(10th Cir. 2007)(dismissing § 1983 damages
claim against a Geary County district judge in his official
capacity); Boxum-Debolt v. Office of Dist. Attorney,
2013 WL 5466915 *4 (D.Kan. 9/30/2013)(barring § 1983
claim against Shawnee District Attorney in his official
capacity); Kjorlie v. Lundin, 1991 WL 290452 (D.Kan.
12/11/1991)(barring § 1983 claim against a KBI agent in
his official capacity).
DEFENDANT SCHOEN SHALL BE DISMISSED UNLESS PLAINTIFF AMENDS
HIS COMPLAINT WITHIN 30 DAYS
does not allege facts showing defendant Schoen's personal
participation in the alleged illegal conduct. Therefore, he
shall be dismissed unless plaintiff's moves to amend the
complaint within 30 days of the date of this order. See
Iqbal, 556 U.S. at 678 (a complaint must contain
sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face); Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir.
2008)(a § 1983 complaint must demonstrate personal
involvement on the part of each individual); Robbins v.
Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242,
1250 (10th Cir.2008)(where a plaintiff names several
individuals as defendants, the complaint must make clear
exactly who is alleged to have done what to whom, to provide
each individual with fair ...