United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. (Doc. 3.) This matter is
before the Court on Plaintiff's Motion for Order to
Disqualify the Respondent (Doc. 20); Motion to Amend
Complaint (Doc. 23); Motion to Leave and Amend (Doc. 24); and
Motions to Compel (Docs. 25, 26).
allegations in his original Complaint (Doc. 1) relate to his
state criminal proceedings, and include claims of malicious
prosecution, ineffective assistance of counsel, illegal
detainment and judicial misconduct. Plaintiff claims he was
booked into the Wyandotte County Adult Detention Center on
October 8, 2015, on a 48-hour hold. Plaintiff alleges that
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. Plaintiff claims
that although the 48-hour hold expired on October 10, 2015,
Plaintiff continued to be held until his arrest on October
13, 2015. Plaintiff's seeks money damages and to have his
state criminal charges dismissed with prejudice.
December 22, 2017, the Court entered a Memorandum and Order
and Order to Show Cause (Doc. 5) (“MOSC”). The
MOSC gave Plaintiff until January 22, 2018, to show cause why
multiple defendants should not be dismissed from the case.
Plaintiff failed to respond to the MOSC by the deadline and
the Court entered an Order (Doc. 8) dismissing the defendants
set forth in the MOSC. The Court held that the proper
processing of Plaintiff's claims against the remaining
Defendants could not be achieved without additional
information from appropriate officials of Wyandotte County,
Kansas. The Court ordered those officials to prepare a
Martinez Report. See Martinez v. Aaron, 570
F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon,
935 F.2d 1106 (10th Cir. 1991).
remaining Defendants filed the Martinez Report on
April 20, 2018. (Doc. 13.) On May 30, 2018, the Defendants
filed a Motion to Dismiss (Docs. 16, 17), alleging that
although the arrest warrant was filed on October 13, 2015, it
was actually signed by the judge on October 9, 2015.
Plaintiff has now filed two motions to amend his Complaint.
Motion to Leave and Amend (Doc. 24)
filed a Motion to Leave and Amend (Doc. 24), stating that he
is seeking to bring a Federal Tort Claim under 28 U.S.C.
§ 1343(1)(2)(3) in addition to his 42 U.S.C. § 1983
claims. The Court finds that Plaintiff's motion to amend
should be denied on the grounds of futility. See Frank v.
U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)
(leave to amend a complaint may be denied on the basis of
futility among other reasons).
proposed amendment to assert a claim under the Federal Tort
Claims Act (“FTCA”) would be futile because
Plaintiff has not named any federal defendants. The FTCA, 28
U.S.C. §§ 1346(b)(1), 2671-2680, “allows the
United States to be sued for claims arising out of negligent
or wrongful acts or omissions of its employees, when such
employees are acting within the scope of their duties.”
Ingram v. Faruque, 728 F.3d 1239, 1245 (10th Cir.
2013) (citing § 1346(b)(1)). “The United States is
the only proper defendant in an FTCA action.”
Smith, 561 F.3d at 1099 (quoting Oxendine v.
Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001));
see Hui, 559 U.S. at 801 (the FTCA “generally
authorizes substitution of the United States as the
defendant.”). The FTCA “provides the exclusive
avenue to assert a claim sounding in tort against the United
States.” Franklin Sav. Corp., In re, 385 F.3d
1279, 1286 (10th Cir. 2004), cert. denied, 546 U.S.
814 (2005) (citing 28 U.S.C. § 2679(a), which provides
that “the FTCA remedy is ‘exclusive' for all
‘claims which are cognizable under section
1346(b)'”). Furthermore, the FTCA has procedural
and jurisdictional requirements. See Staggs v. U.S. ex
rel. Dep't of Health and Human Servs., 425 F.3d 881,
885 (10th Cir. 2005) (stating that the “FTCA's
presentation requirements are jurisdictional and cannot be
waived”) (citation omitted). Therefore, exhaustion of
administrative remedies is a prerequisite to suit under the
FTCA, and courts lack jurisdiction over FTCA claims not
presented to the appropriate federal agency. See 28
U.S.C. § 2675(a); Greenlee v. U.S. Postal
Serv., 247 Fed.Appx. 953, 954-55 (10th Cir. 2007).
Motion to Leave and Amend Complaint (Doc. 23)
also filed a motion for leave to amend his Complaint (Doc.
23), seeking to specify with detail that Defendant Fithian
directly lied upon the affidavit supporting the arrest
warrant. Rule 15(a)(2) provides that after a responsive
pleading has been filed, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave” and “[t]he court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Defendants have not filed a response
in opposition to the motion to amend. The Court will grant
the motion to amend.
proposed Amended Complaint at Doc. 23-1, however, is
deficient for several reasons. Plaintiff has failed to submit
his Amended Complaint on the court-approved form, has failed
to name the defendants in the caption, and has failed to
request any form of relief. The Court will give Plaintiff an
opportunity to resubmit his Amended Complaint on the
court-approved form. Plaintiff should also be mindful of the
Court's prior rulings when he asserts his request for
relief. In the MOSC, the Court noted that:
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. 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).
(Doc. 5, at 5.) Similarly, in Plaintiff's prior habeas
action before this Court, the Court dismissed the ...