United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
matter is before the Court on a civil rights action filed
under 42 U.S.C. § 1983 by a prisoner held in the Rice
County Jail. Plaintiff proceeds pro se and seeks leave to
proceed in forma pauperis.
complaint states that plaintiff was convicted of two counts
of theft in the District Court of Rice County in No. 05 CR
137.He claims he is wrongfully held, and he
appears to claim that he was convicted improperly of two
counts after the second count was dismissed. Although the
form pleading does not request specific relief, the Court
liberally construes the pro se pleading to seek relief from
his confinement and conviction.
plaintiff proceeds pro se, the Court must liberally construe
his complaint without assuming a role as his advocate.
Gallagher v. Shelton, 587 F.3d 1063, 1067
(10th Cir. 2009).
plaintiff is a prisoner, the Court has conducted a
preliminary screening of this matter, see 28 U.S.C.
§ 1915A, and must dismiss any claim that is frivolous,
malicious, fails to state a claim upon which relief may be
granted. Id., § 1915A(b).
because it appears that state court proceedings are
continuing in plaintiff's criminal case, the Court should
abstain from exercising jurisdiction under Younger v.
Harris, 401 U.S. 37 (1971). Under Younger, a
federal court must abstain from exercising jurisdiction over
federal claims when (1) a state court criminal, civil, or
administrative proceeding is ongoing; (2) the state court
provides an adequate forum to consider the claims presented
in the federal action; and (3) the state proceedings involve
important state interests. Wietzel v. Div. of
Occupational & Prof'l Licensing, 240 F.3d 871,
875 (10th Cir. 2001); Middlesex County Ethics
Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432
(1982). The Younger doctrine arises from
“notions of comity and federalism, which require that
federal courts respect state functions and the independent
operation of state legal systems.” Phelps v.
Hamilton, 122 F.3d 885, 889 (10th Cir. 1997).
it appears that plaintiff has counsel and is pursuing a state
criminal appeal, and this satisfies the first condition under
Younger. Next, the Kansas courts provide plaintiff
with a forum to present claims concerning the legality of his
conviction. See Capps v. Sullivan, 13 F.3d 350 354
n.2 (10th Cir. 1993)(“[F]ederal courts
should abstain from the exercise of … jurisdiction if
the issues raised … may be resolved either by trial on
the merits in state court or by other (available) state
procedures.”)(quotation omitted). Third, the State of
Kansas has an important interest in the enforcement of its
criminal law. In re Troff, 488 F.3d 1237, 1240
(10th Cir. 2007)(“[S]tate control over
criminal justice [is] is a lynchpin in the unique balance of
interests” described as “Our
Federalism”)(citing Younger, 401 U.S. at 44).
Because the three Younger criteria are satisfied,
the Court concludes this matter is subject to dismissal
to the extent plaintiff seeks relief from a state court
conviction, his remedy lies in a federal habeas corpus
action. See Preiser v. Rodriguez, 411 U.S. 475, 499
(1973)(“when a state prisoner is challenge the very
fact or duration of his physical imprisonment, and the relief
he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus”);
Boutwell v. Keating, 399 F.3d 1203, 1209
(10th Cir. 2005)(“Habeas corpus is the only
avenue for a challenge to the fact or duration of
confinement, at least when the remedy requested would result
in the prisoner's immediate or speedier release.”).
bringing a federal habeas corpus action, a prisoner must
exhaust available state court remedies. See 28
U.S.C. §2254 (b)(1)(A)(stating that “[a]n
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that … the applicant
has exhausted the remedies available in the courts of the
State”). At this point, plaintiff has not completed his
appeal, and therefore this matter, if construed as a petition
for habeas corpus, would be subject to dismissal as
to Show Cause
reasons set forth, the Court will direct plaintiff to show
cause why this matter should not be dismissed without
prejudice. Plaintiff must file a written response on or
before December 14, 2018. The failure to
file a timely response will result in the dismissal of this
matter without prejudice and without additional notice.
THEREFORE, BY THE COURT ORDERED plaintiff is granted to and
including December 14, 2018, to show cause
why this ...