Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Counce v. Guerra

United States District Court, D. Kansas

November 16, 2018

JESSE COUNCE, Plaintiff,
v.
JOSE GUERRA, et al., Defendants.

          MEMORANDUM AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff Jesse Counce, a pretrial detainee being held at the Wyandotte County Detention Center in Kansas City, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's complaint (ECF No. 1) alleges misconduct on the part of two of his appointed defense attorneys, Debra Erickson and Dwight Alexander, and on the part of the prosecutor, Jose Guerra, in his pending state prosecution.[1] According to the complaint, Defendant Erickson was “relieved of duties” as Mr. Counce's defense attorney due to lack of communication, comments indicating she was not “in [Mr. Counce's] favor”, failure to contact any of his five witnesses, giving exculpatory evidence about Plaintiff's alibi and witnesses to Prosecutor Guerra, coming to a hearing with Prosecutor Guerra and giving Plaintiff an “inappropriate smile”, and stating she was not going to file any motions in defense of Mr. Counce. ECF No. 1 at 2, 4, 8, 11. The state court judge then appointed Defendant Alexander to represent Mr. Counce, and Defendant Guerra attempted to “prejudice his mind towards [Mr. Counce]” by mentioning to him a 1994 prosecution of Plaintiff in which he was found not guilty. Id. at 10. Plaintiff further complains Defendant Guerra “coerced” the State's main witness at a preliminary hearing by asking her only “yes and no questions, ” and Defendant Alexander failed to object. Id. at 10-11. Finally, Plaintiff complains Defendant Alexander has also said he is not going to file any motions on Plaintiff's behalf, and he has not contacted Plaintiff's witnesses.[2] Id. at 11.

         Plaintiff alleges Sixth Amendment ineffective assistance of counsel, violation of the Kansas Rules of Professional Conduct, and prosecutorial misconduct. He seeks compensatory damages and release from jail.

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

         “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

         The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).

         The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true, ” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, ” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.Ct. at 1974).

         III. Discussion

         A. Abstention

         Mr. Counce asks this Court to order his release from jail and to award him damages for allegedly unconstitutional actions taken by Defendants in connection with a pending state criminal prosecution. The Court is prohibited from doing so under Younger v. Harris,401 U.S. 37, 45 (1971).[3] The Younger abstention doctrine is based on ‚Äúnotions of comity and federalism, which Plaintiff's assertions ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.