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Ewing v. Smartt

United States District Court, D. Kansas

November 15, 2017

KEVIN WAYNE EWING, Plaintiff,
v.
JASON SMARTT, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff Kevin Wayne Ewing, a state prisoner appearing pro se, brings this 42 U.S.C. § 1983 civil rights complaint. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's complaint (Doc. #1) has to do with his sentence in Sedgwick County, Kansas Case No. 85 CR 1434 and perhaps the sentences imposed as result of his other convictions. Plaintiff names as defendants: Jason Smartt, his appointed public defender for purposes of a motion to correct illegal sentence in 85 CR 1434; Kansas District Court Judge John J. Kisner; and David Lowden, the prosecutor.

         The following background is taken from the Kansas Court of Appeals decision in State v. Ewing, 369 P.3d 342 (Kan. App. 2016)(unpublished). In 85 CR 1434, Plaintiff was charged with burglary, a Class D felony. He pleaded guilty and was ordered to serve an indeterminate sentence of not less than two years or more than ten years. On December 24, 2014, Defendant Smartt filed a motion for sentence conversion or a motion to correct illegal sentence on Plaintiff's behalf in state court. In the motion, Defendant Smartt argued Plaintiff's sentence was illegal and should be converted under K.S.A. 21-4724 to a guidelines sentence because his prior convictions should have been classified as nonperson offenses. The motion was rejected by the district court and the Kansas Court of Appeals. The Court of Appeals found that Plaintiff was also convicted of attempted aggravated robbery in 1988, a crime that would have been classified as requiring presumptive imprisonment under the KSGA, and therefore, none of Plaintiff's pre-KSGA sentences were eligible for conversion. Id. at *2.

         However, it does not appear that Plaintiff is making the same arguments here. He seems to be claiming that he was never convicted of burglary in 85 CR 1434. Plaintiff alleges Defendant Smartt brought the case to the state court's attention by filing the motion to correct illegal sentence because he discovered there was an incomplete trial with no verdict or outcome. Mr. Ewing states his attorney at the time of his sentencing failed to get him back to court on a 120 day call back for the grant of plea agreement. Plaintiff claims that after filing the motion, Defendant Smartt then “decided to sell [Plaintiff] out” by altering the “whole record of 85 CR 1434 by changing my journal entry judgment-sentencing to a guilty plea.” Doc. #1, p. 8. Plaintiff states that at the hearing on the motion, all three defendants “[made] [his] illegal sentence look like its over the conversion issue” when his “illegal sentence has nothing to do with conversion.” Doc. #1, p. 8-9. Plaintiff alleges the sentence in 85 CR 1434 was “put in ex post facto in 1993, ” presumably when the Kansas Department of Corrections issued a Sentencing Guidelines Report for him.

         Plaintiff seeks the following relief: “to vacate the illegal sentence, ” actual damages, and punitive damages. He states in conclusion that he should have been “converted and released over 24 years ago.” Doc. #1, p. 10.

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

         To survive this review, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying the Twombly standard, the Court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).

         While a pro se plaintiff's complaint must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se status does not relieve the plaintiff of “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). “[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks omitted).

         “To state a claim under § 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 (1988); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). In addressing a claim brought under § 1983, the analysis begins by identifying the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393-94 (1989). The validity of the claim then must be judged by reference to the specific constitutional standard which governs that right. Id.

         III. ...


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