United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
This matter is a civil rights action filed under 42 U.S.C.
§ 1983 by a pretrial detainee. Mr. Freeman proceeds
pro se and in forma pauperis. For the
reasons discussed below, Plaintiff is ordered to show cause
why his complaint should not be dismissed.
Nature of the Matter before the Court
complains of actions of the prosecutor, Larry Markle, in
pretrial proceedings. He claims Defendant has exhibited bias,
has withheld crucial evidence, has made false statements to
the court, and has violated Plaintiff's Sixth Amendment
right to a speedy trial. Plaintiff requests the appointment
of a special prosecutor and that criminal charges be brought
Statutory Screening of Prisoner Complaints
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).
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
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).
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.
Count I, Plaintiff alleges that he has been in the Montgomery
County Jail for “two years nearly” awaiting
trial. As a result, he claims his Sixth Amendment right to a
speedy trial has been violated. Plaintiff does not specify
what type of relief he believes he is entitled to as a result
of this alleged violation, whether monetary damages,
enforcement of his right to a speedy trial, or dismissal of
the charges pending against him and release from detention.
Plaintiff filed this action pursuant to § 1983. In
Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), the
United States Supreme Court emphasized that “a §
1983 action is a proper remedy for a state prisoner who is
making a constitutional challenge to the conditions of his
prison life, but not to the fact or length of his
custody.” When the legality of a confinement is
challenged so that the remedy would be release or a speedier
release, the case must be filed as a habeas corpus proceeding
rather than under 42 U.S.C. § 1983, and the plaintiff
must comply with the exhaustion of state court remedies
requirement. Heck v. Humphrey, 512 U.S. 477 (1994);
see also Montez v. McKinna, 208 F.3d 862, 866
(10th Cir.2000) (exhaustion of state court
remedies is required by prisoner seeking habeas corpus
relief). An alleged violation of Plaintiff's speedy trial
rights necessarily involves a challenge to the fact, length,
or legality of his custody, not the conditions of his
confinement. Therefore, his claim is not cognizable in a
§ 1983 action and should be dismissed. See, e.g.,
Jenkins v. Scott, No. 94-3426, 1995 WL 547790
(10th Cir. Sept.15, 1995) (unpublished) (claim
alleging violation of speedy trial rights not cognizable in a
§ 1983 action but must be brought in a habeas action).
Plaintiff's claim as a habeas corpus action would not
save it because Plaintiff has not shown or even alleged that
he has exhausted his state court remedies. Mr. Freeman must
properly present his claim to the highest state court before
proceeding in federal habeas corpus. See Brown v.
Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999).
Plaintiff has not exhausted his claim in the Kansas courts.
U.S. Supreme Court has observed that: “Since the
beginning of this country's history Congress has, subject
to few exceptions, manifested a desire to permit state courts
to try state cases free from interference by federal
courts.” Younger v. Harris, 401 U.S. 37, 43
(1971). Abstention by the federal court from interfering with
state court litigation is required when three conditions are
met: (1) there are ongoing state proceedings; (2) the state
proceedings offer an adequate forum to hear the
plaintiff's federal claims; and (3) the state proceedings
implicate important state interests. Taylor v.
Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997),
cert. denied, 523 U.S. 1005 (1998). These conditions are
satisfied here. The state trial on the charges against
Plaintiff is set for March 20, 2018. Mr. Freeman has failed
to show that the state courts do not provide an adequate
avenue for relief. See Weitzel v. Div. of Occupational
and Prof'l Licensing.,240 F.3d 871, 875 (10th Cir.
2001). As to the third factor, “the States'
interest in administering their criminal justice systems free
from federal ...