United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
August 3, 2017, Magistrate Judge Kenneth G. Gale filed a
Report and Recommendation, recommending that this court
dismiss plaintiff's complaint as frivolous (Doc. 6).
Judge Gale notified plaintiff that any objections to the
order were due by August 17, 2017. Because the order was not
delivered until August 16, 2017, the deadline was extended to
August 30, 2017.
August 31, plaintiff filed “Motion for Documents
Prepare[d] in Layman's Form” (Doc. 8). In that
motion, plaintiff asks the court to use plain language and
send him copies of all cases cited in orders because he does
not have the same legal resources as an attorney. This motion
is granted in part and denied in part. The court will use
plain language in its orders, mindful of plaintiff's
circumstances and lack of legal training. The court will not,
however, attach copies of cases cited in its opinions.
same day, plaintiff filed “Motion for Review for Order
on Motion to Proceed without Prepayment of Fees, Motion to
Appoint Counsel, and Report & Recommendation of
Dismissal” (Doc. 9). Although this document is titled
as a motion, it is essentially an objection to the Report and
Recommendation, and the court will treat it as such. It is
untimely by one day, but the court excuses the untimeliness
in this instance in the interest of justice.
October 4, 2017, plaintiff filed “Civil/Criminal
Complaint II to Show Cause” (Doc. 10). This appears to
be an attempt to belatedly supplement plaintiff's
objections to Judge Gale's Report and Recommendation.
October 4, 2017, plaintiff filed two additional documents
that appear to relate to the Report and Recommendation dated
August 3: “Motion for Continuance for Additional Short
Exten[s]ion” (Doc. 11) and “Motion for
Continuance for Motion to Appoint Counsel and Report &
Recommendation of Dismissal” (Doc. 12). Both of these
documents appear to request a thirty-day extension of time to
respond to Judge Gale's order. Doc. 12 is dated August
31, 2017, although it was not filed until October 4. It
appears that plaintiff believed he had already sent this
document for filing. Doc. 11 is dated October 4, 2017. In
Doc. 11, plaintiff asks not only for the original additional
thirty days, but also an additional eight days to respond to
Judge Gale's order. The court would be justified in
denying both of these motions as untimely and in disregarding
plaintiff's belated supplemental objection to Judge
Gale's order. Because plaintiff appears to have tried to
send the original request for additional time on August 31,
however, the court will grant Doc. 12 and consider Doc. 10 as
a supplemental objection to Judge Gale's order. Doc. 11
is also granted, but because the additional eight days have
already expired with no further filing, plaintiff is not
entitled to file another supplemental objection to
Judge Gale's order.
light of these rulings, the court now turns to the Report and
Recommendation of Judge Gale, considering both Docs. 9 and 10
as plaintiff's objections to the order. The court has
reviewed the decision not to appoint counsel under a
“clearly erroneous or contrary to law” standard
and plaintiff's complaint under a de novo standard.
See Fed. R. Civ. P. 72(a), (b). First: appointment
of counsel. Judge Gale appropriately applied the factors for
appointment of counsel in Castner v. Colorado Springs
Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992).
Although plaintiff cannot afford counsel and has contacted a
number of attorneys without success, Judge Gale appropriately
found that appointment is not proper because of the lack of
merit in plaintiff's case (as explained below) and
because the legal and factual issues in this case are not
unusually complex. The court overrules plaintiff's
objection to Judge Gale's decision to deny appointment of
plaintiff's complaint. The court first dismisses William
B. Elliot, Richard A. Buck, Steve Marten, and Melvin Ray
Lagerman because plaintiff failed to make any factual
allegations against these defendants. As for Ellen Mitchell,
plaintiff states that she “has conspired with other[s]
to commit [perjury], fraud and harass [plaintiff] over 15
years!” Plaintiff identified Ms. Mitchell as a county
attorney. But plaintiff does not provide factual details
about how Ms. Mitchell conspired to commit perjury or fraud
or harass plaintiff. Doc. 9 does not give any additional
factual details. In Document 10, however, plaintiff makes
more specific allegations against Ms. Mitchell and Mr.
Lagerman. Plaintiff also indicates a willingness to dismiss
Mr. Elliot, Mr. Buck, and Mr. Marten in Doc. 10.
the court were to consider the additional allegations in Doc.
10 (although they are not included in plaintiff's
complaint), plaintiff still fails to state a claim. All of
plaintiff's allegations are about actions that are
related to legal actions in Saline County, Kansas. Plaintiff
may not use this court to collaterally attack state court
proceedings. Plaintiff appears to believe that Ms. Mitchell
improperly handled a criminal case against him and Mr.
Lagerman signed a false affidavit in the criminal case. If
the court were to allow plaintiff to proceed with his
allegations, plaintiff would effectively be able to challenge
a state court trespassing case in federal court. The court
lacks jurisdiction to hear these types of claims under the
Rooker-Feldman doctrine. See Dist. of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923);
see also Pittsburg Cnty. Rural Water Dist. No. 7 v. City
of McAlester, 358 F.3d 694, 706-07 (10th Cir. 2004).
This doctrine “prohibits federal suits that amount to
appeals of state-court judgments.” Bolden v. City
of Topeka, 441 F.3d 1129, 1139 (10th Cir. 2006). It
applies to “cases brought by state-court losers
complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). Although plaintiff does
not overtly ask for this court to set aside a judgment
against him, he does challenge the actions of participants in
the state court action. If this court reviewed those actions,
it would necessarily call into question any judgment. The
court therefore dismisses plaintiff's complaint for lack
complaint also fails to state a claim for additional reasons.
First, he brings this action against Ms. Mitchell for her
actions as a county attorney. A prosecutor is entitled to
immunity for her actions taken as prosecutor. See Imbler
v. Pachtman, 424 U.S. 409, 431 (1976) (“[I]n
initiating a prosecution and in presenting the State's
case, the prosecutor is immune from a civil suit for damages
under § 1983.”). This immunity extends to all
activities that are “intimately associated with the
judicial . . . process.” Id. at 430-31;
see also Scott v. Hern, 216 F.3d 897, 908 (10th Cir.
2000). Here, plaintiff complains of Ms. Mitchell's
actions associated with her role in bringing charges against
plaintiff, and her actions therefore fall within this grant
of immunity. Cf. Imbler, 424 U.S. at 428-29 (holding
that a prosecutor is immune from § 1983 liability for
plaintiff's remaining claims against Mr. Lagerman, the
court dismisses them because there is no allegation that Mr.
Lagerman is a state actor. Plaintiff brings his claims
pursuant to 42 U.S.C. § 1983, and such claims must be
against state actors. Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (stating that private
conduct, “no matter how discriminatory or wrongful,
” is not redressable by a § 1983 claim) (citation
omitted). From plaintiff's papers, it appears that Mr.
Lagerman is plaintiff's neighbor.
plaintiff asks this court to institute criminal charges
against the named defendants. This is not permitted.
Presley v. Presley, 102 F. App'x 636, 636 (10th
Cir. 2004) (“[W]e hold that such an order would
improperly intrude upon the separation of powers.”).
of these reasons, as well as the reasons stated in Judge
Gale's order, the court adopts the Report and
Recommendation of Judge Gale and dismisses this case under
the standards of 28 U.S.C. § 1915, Fed.R.Civ.P.
12(b)(1), and Rule 12(b)(6).
THEREFORE ORDERED that “Motion for Documents Prepare[d]
in Layman's Form” (Doc. 8) is ...