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Caranchini v. Peck

United States District Court, D. Kansas

October 29, 2018

GWENDOLYN G. CARANCHINI, Plaintiff,
v.
LOLA PECK, et al., Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         Pro se plaintiff Gwendolyn G. Caranchini filed the present action against the Johnson County District Attorney's Office, Assistant District Attorneys (“ADA”) John Fritz and Michael McElhinney, Johnson County Magistrate Judge Dan Vokins, and Johnson County Magistrate Judge James E. Phelan (collectively the “State defendants”), Rick and Lola Peck, and Johnson County Sheriff Calvin Hayden. The matter is currently before the court on the State defendants' Motion to Dismiss (Doc. 69) and plaintiff's Motion to Dismiss Without Prejudice (Doc. 91). For the following reasons, the court grants the State defendants' motion and denies plaintiff's motion.

         I. Background

         Plaintiff filed a 147-page complaint on May 14, 2018. The court will highly summarize the facts relevant to the present motion. Plaintiff, a former attorney[1], and defendant Rick Peck were involved in an extra-marital affair. At some point Rick and his wife, defendant Lola Peck, filed for a Temporary Restraining Order (“TRO”) against plaintiff. At the time the TRO was filed, Rick and Lola Peck were divorced but apparently still living together.

         On February 9, 2017, plaintiff appeared in front of a Johnson County District Court magistrate judge for a hearing on the TRO. At the conclusion of the hearing, deputies from the Johnson County Sheriff s Department arrived to arrest plaintiff on telephone harassment charges. Plaintiff was taken to the Johnson County Jail, where she was held until she was released the following evening on bond. She was incarcerated for approximately 36 hours. The telephone harassment charges were eventually dismissed.

         The State defendants are listed in Counts IV, V, VI and VII of the complaint. In the “Factual Basis for Jurisdiction, ” in the complaint, plaintiff notes her claims are against ADAs John Fritz and Michael McElhinney, “in their official positions in Johnson County as Assistant District Attorneys which violated 42 U.S.C. Sec 1982 et. seq. and against John Fritz also outside his official position . . . ” (Doc. 1, at 24.) Her claims against the district attorney defendants involve the following allegations:

. ADA John Fritz colluded with Lola Peck to have plaintiff arrested and jailed;
. ADAs John Fritz and Michael McElhinney failed to properly charge her;
. ADA John Fritz libeled and slandered plaintiff when he filed a document in the telephone harassment case that stated plaintiff was in need of a mental examination;
. ADA John Fritz violated her constitutional rights by waiting until the TRO hearing to have her arrested on the telephone harassment charge;
. ADA John Fritz violated her constitutional rights by having plaintiff handcuffed in open court at the conclusion of the TRO hearing without advising her of the charges against her or giving her an opportunity to appear before a judge to enter a plea or post bond;
. ADA John Fritz filed the telephone harassment charges against her which resulted in her 36-hour incarceration;
. ADA Michael McElhinney wrongfully pursued the charges after plaintiff was released from jail.

         Plaintiff seeks monetary damages from the district attorney defendants as well as punitive damages and injunctive relief.

         Plaintiffs claims against Johnson County Magistrate Judge Dan Vokins and Johnson County Magistrate Judge James E. Phelan are for their “handling of the Municipal case ultimately dismissed by ADA McElhinney involving [plaintiff] in Johnson County, Kansas.” (Doc. 1, at 27.) She claims both judges violated her constitutional rights under “42 U.S.C. 1982 et seq.” for the following reasons:

. Judge Vokins did not “call up” her case until almost 24 hours after plaintiff was incarcerated;
. Judge Vokins permitted the jail staff to claim plaintiff was “uncooperative” in her legal file ...

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