United States District Court, D. Kansas
REPORT & RECOMMENDATIONS
GARY SEBELIUS U.S. MAGISTRATE JUDGE
Donald Alvin Womack, Jr., proceeding pro se and
in forma pauperis, has filed the above-captioned
action against Defendants the Shawnee County District
Attorney's Office and United States Attorney Jared Maag.
When a plaintiff proceeds in forma pauperis, the
court may review the complaint under 28 U.S.C. 1915(e)(2).
That section authorizes the court to dismiss the case if the
court determines that the action “(i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” In this case, the
magistrate judge recommends the district judge dismiss this
action without prejudice for failure to state a claim upon
which relief may be granted and because plaintiff is seeking
relief from a defendant who would be immune from such relief.
Womack has used a form complaint for civil rights violations
pursuant to 42 U.S.C. § 1983. The complaint
characterizes plaintiff's claim as
“kidnapping.” Plaintiff alleges that the Shawnee
County District Attorney's Office charged him with
aggravated robbery and kidnapping in January 2016. According
to the complaint, the charges were dismissed when Mr. Womack
was charged federally with carjacking in February 2016.
Indeed, in United States v. Donald Alvin Womack,
Jr., 16-40014-DDC, Mr. Womack was indicted on a charge
of carjacking in violation of 18 U.S.C. §§ 2119 and
2. The complaint alleges that in July 2016, Mr. Maag informed
Mr. Womack's criminal defense attorney that the federal
indictment would be dismissed but that Mr. Womack remained in
custody until August 11, 2016, “while they waited to
see if Shawnee County wanted to charge me again, which they
did with the same charges they dismissed in Jan.
court uses the Fed.R.Civ.P. 12(b)(6) motion-to-dismiss
standard to determine whether dismissal under Section
1915(e)(2)(B)(ii) is appropriate. The court liberally
construes pro se parties' pleadings and will
accept as true all well-pleaded facts, drawing all reasonable
inferences in the plaintiff's favor. However, the
plaintiff still bears the burden of alleging sufficient facts
upon which a recognized legal claim could be based. The court
cannot assume the responsibility of serving as
plaintiff's attorney in constructing arguments or
scouring the record for a possible cause of
action. The plaintiff “must allege
sufficient facts to state a claim which is plausible-rather
than merely conceivable-on its face.” Dismissal is
appropriate when the plaintiff cannot prevail on the facts
alleged, and it would be futile to give the plaintiff an
opportunity to amend.
construing Mr. Womack's “kidnapping” claim,
it appears Mr. Womack asserts that his Fourth Amendment
rights were violated during the one-month period of
incarceration after Mr. Maag allegedly informed Mr.
Womack's attorney that he was waiting to see if the
Shawnee County District Attorney's Office would charge
Mr. Womack again before seeking dismissal of the federal
indictment. The Fourth Amendment protects against
unreasonable searches and seizures by government actors and
generally applies to claims of wrongful
detention. Mr. Womack's claims stem from his
detention in federal custody. Because the Shawnee County
District Attorney's office did not “seize”
plaintiff within the meaning of the Fourth Amendment during
the period giving rise to the claim, plaintiff does not state
a claim against this defendant. Additionally,
sub-governmental entities like district attorneys'
offices are generally not capable of being
Womack also fails to state a claim against Mr. Maag. Mr.
Womack has used a form § 1983 complaint. However, to
state a § 1983 claim, a plaintiff must allege a
violation of Constitutional rights by a person acting under
the color of state law. Although Mr. Womack has checked the
box on the form complaint indicating that Mr. Maag was acting
under the color of state law, the complaint is void of any
factual allegations supporting this assertion. Rather, Mr.
Maag, a federal prosecutor, would have been acting under the
color of federal authority when he served as the prosecuting
attorney on Mr. Womack's federal criminal
case. Bivens v. Six Unknown Named
Agents has been interpreted to create a cause
of action against federal actors similar to § 1983
claims against state actors. Even liberally construing Mr.
Womack's complaint as asserting a Bivens claim,
the complaint still does not state a claim for a Fourth
Amendment violation. Pretrial detention constitutes a
seizure. The seizure is reasonable if the
criminal charges are supported by probable
cause. In this case, the complaint fails to
allege that the federal criminal charge was not supported by
probable cause. In fact, the court takes judicial notice that
Mr. Womack was indicted by a grand jury, which requires a
finding by the grand jury that probable cause
existed. Because plaintiff's seizure was
reasonable, Mr. Maag did not violate Mr. Womack's Fourth
Womack's complaint does not specify what relief Mr.
Womack seeks or whether Mr. Maag is being sued in his
individual or official capacity. Regardless, Mr. Maag is
almost certainly immune from suit. Prosecutorial immunity
shields prosecutors from liability in initiating or
presenting the government's case against a criminal
defendant. It extends to “questions of
whether to present a case to a grand jury, whether to file an
information, whether and when to prosecute, whether to
dismiss an indictment against particular defendants, which
witnesses to call, and what other evidence to
present.” The timing of Mr. Maag's motion to
dismiss a charge supported by probable cause falls within
these categories, and therefore, he would be entitled to
prosecutorial immunity. Additionally, suits against a
federal-government official acting in his official-capacity
are suits against the United States. Sovereign immunity bars
suits against the United States unless it has waived
immunity,  and the United States has not waived
immunity in Bivens actions. Therefore,
plaintiff's claim against Mr. Maag in his official
capacity would also be barred.
these reasons, the magistrate judge recommends the district
judge dismiss this action because plaintiff's complaint
fails to state a claim for which relief may be granted and
because plaintiff is seeking relief from a defendant who is
immune from such relief. Pursuant to 28 U.S.C.§
636(b)(1) and Fed.R.Civ.P. 72, plaintiff shall have fourteen
(14) days after service of a copy of this Report and
Recommendation to file any written objections. A party must
file any objections within the fourteen-day period if that
party wants to have appellate review of the proposed findings
of fact, conclusions of law, or recommended disposition. If
no objections are timely filed, no appellate review will be
allowed by any court.
IS SO ORDERED.
 28 U.S.C. §
 Compl. at 4, ECF No. 1.
 Compl. at 2, ECF No. 1.