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Jackson v. Burdette

United States District Court, D. Kansas

November 16, 2018

J. DEXTER BURDETTE, et al., Defendants.



         Plaintiff 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).

         I. Background

         Plaintiff's 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.

         On 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).

         The 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.

         II. Motion to Leave and Amend (Doc. 24)

         Plaintiff 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).

         Petitioner's 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).

         III. Motion to Leave and Amend Complaint (Doc. 23)

         Plaintiff 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.

         Plaintiff's 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.[1] 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 ...

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