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Jackson v. Burdette

United States District Court, D. Kansas

December 22, 2017

J. DEXTER BURDETTE, et al., Defendants.



         Plaintiff Marcus Shamillyon Jackson is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why his claims against Defendants Burdette, Zimmerman, Serra, Gordman, Dupree, Floyd, Penland, Alig, Birmingham, Mellor, Smith, and Williams, should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein. The Court finds that proper processing of Plaintiff's claims against the remaining Defendants cannot be achieved without additional information from appropriate officials of Wyandotte County, Kansas.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis, and assessed an initial partial filing fee. (Doc. 3.) Plaintiff filed a response (Doc. 4) indicating that he does not have the funds to pay the initial partial filing fee. The Court will treat the response as a request to waive the initial partial filing fee and will grant the request.

         Plaintiff's allegations in his Complaint relate to his state criminal proceedings, and include claims of malicious prosecution, ineffective assistance of counsel, illegal detainment and judicial misconduct. Plaintiff names as Defendants: Wyandotte County District Court Judges J. Dexter Burdette, Fred Zimmerman, and Robert Serra; Wyandotte County Prosecutors Jerome Gordman, Mark Dupree, James Antwone Floyd, Thomas Penland, and Susan Alig; defense attorneys Mark Birmingham, Elizabeth Mellor, and Jacob N. Smith; Wyandotte County Sheriff Donald Ash; Wyandotte County Jail Warden Jeffrey Fewell; Wyandotte County Unified Government; Kansas City Police Department Detective (fnu) Fithian; Amazon Supervisor Carl Levert Williams; and (fnu) (lnu) Wyandotte County Sheriff's Department Deputy. Plaintiff's seeks money damages and to have his state criminal charges dismissed with prejudice.

         Plaintiff claims he was booked into the Wyandotte County Adult Detention Center on October 8, 2015, on a 48-hour hold. Defendant Detective Fithian placed the hold on Plaintiff due to a lack of criminal evidence and Plaintiff's request to have a lawyer present prior to questioning. Although the 48-hour hold expired on October 10, 2015, Plaintiff continued to be held until his arrest on October 13, 2015.

         Plaintiff alleges in his Complaint that in his state criminal proceedings Judge Burdette failed to replace his ineffective defense counsel, Mark Birmingham, and denied him a fair trial. Plaintiff also sets forth errors allegedly committed by defense attorney Birmingham, and claims they had an irreconcilable conflict. Plaintiff also alleges that defense attorneys Elizabeth Mellor and Jacob N. Smith failed to properly defend him. Plaintiff claims that Judge Robert Serra denied his oral motion to dismiss the charges against Plaintiff. Plaintiff claims that Detective Fithian unconstitutionally arrested Plaintiff. Plaintiff claims that Judge Fred Zimmerman “negligently upheld [Plaintiff's] constitutional rights after he observed in court that something was wrong with the documentation relating to the arrest warrant.

         Plaintiff claims that Sheriff Donald Ash, Warden Jeffrey Fewell, and an unknown deputy at Wyandotte County failed to release him from jail after completion of his 48-hour hold. Plaintiff's claims against Amazon Supervisor Carl Levert Williams, a witness in Plaintiff's criminal case, are related to his “deceiving and untrue incriminations to authorities.” Plaintiff alleges that all the named prosecutors allowed the unconstitutional injustice to continue.

         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 an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)- (2).

         “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) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[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.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

         The Tenth Circuit Court of Appeals has explained “that, 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). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).

         The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, 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 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true, ” but rather 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 [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.Ct. at 1974).


         1. Request to have His State Criminal Charges Dismissed

         To the extent Plaintiff challenges the validity of his sentence or conviction, his federal claim must be presented in habeas corpus. However, a petition for habeas corpus is premature until Plaintiff has exhausted available state court remedies.[1] See 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of available state court remedies). Likewise, before Plaintiff may proceed in a federal civil action for monetary damages based upon an invalid conviction or sentence, he must show that his conviction or sentence has been overturned, reversed, or otherwise called into question. Heck v. Humphrey, 512 U.S. 477 (1994).

         2. Request for ...

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