United States District Court, D. Kansas
NOTICE AND ORDER AND TO SHOW
CROW U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff is a prisoner in state custody. He
proceeds pro se and seeks leave to proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
plaintiff's average monthly deposit is $55.03, and the
average balance is $15.17. The court therefore assesses an
initial partial filing fee of $11.00, twenty percent of the
average monthly deposit.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“to state a claim in federal court, a complaint must
explain what each defendant did to [the pro se plaintiff];
when the defendant did it; how the defendant's action
harmed [the plaintiff]; and what specific legal right the
plaintiff believes the defendant violated.” Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombley and Erickson set out
a new standard of review for dismissals under 28 U.S.C.
§ 1915(e)(2)(B)(ii) dismissals. See Key v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations
omitted). Following those decisions, courts “look to
the specific allegations in the complaint to determine
whether they plausibly support a legal claim for
relief.” Kay, 500 F.3d at 1218 (quotation
marks and internal citations omitted). A plaintiff
“must nudge his claims across the line from conceivable
to plausible.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). In this context,
“plausible” refers “to the scope of the
allegations in a complaint: if they are so general that they
encompass a wide swath of conduct much of it innocent,
” then the plaintiff has not “nudged [the] claims
across the line from conceivable to plausible.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (citing
Twombly at 1974).
sues the State of Kansas, a state district court judge, and
an assistant prosecutor. The complaint alleges the defendant
judge and prosecutor “made it appear that [he] has
multiple conviction[s] on the journal entry by allowing the
cases to be consolidated” (Doc. #1, p. 4). Although the
complaint does not specify the relief sought, plaintiff
appears to allege error in his state court sentence.
extent plaintiff seeks relief from his sentence, he must
proceed in habeas corpus. “[W]hen a state prisoner is
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that
he is entitled to immediate release or a speedier release
from hat imprisonment, his sole federal remedy is a writ of
habeas corpus.” Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). Therefore, to obtain relief from his
criminal sentence, plaintiff must proceed in habeas corpus,
following the exhaustion of available state court remedies.
if the complaint is read to seek monetary damages, this
matter is subject to dismissal for failure to state a claim
for relief. First, plaintiff's claim against the State of
Kansas is barred by the Eleventh Amendment, which grants
states sovereign immunity from suits for damages against a
State, its agencies, and its officials acting in their
official capacities. See Kentucky v. Graham, 473
U.S. 159, 165-67 (1985). Next, the defendant judge is shielded
from suit by absolute judicial immunity for acts that were
judicial in nature and and were not taken in the clear
absence of jurisdiction. Stump v. Sparkman, 435 U.S.
349, 359 (1978). The sentencing decision in this matter is a
judicial act, and therefore, the defendant judge is entitled
to immunity. Finally, a prosecutor is shielded by absolute
immunity from suit under 42 U.S.C. § 1983 for actions
taken “in initiating a prosecution and in presenting
the State's case.” Imbler v. Pachtman, 424