United States District Court, D. Kansas
RANDALL A. FULBRIGHT, Plaintiff,
FNU EBBERTS, et al., Defendants.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
Fulbright, a pre-trial detainee now confined in the Larned
State Hospital, filed a pro se civil rights complaint
pursuant to 42 U.S.C. § 1983. Plaintiff's Complaint
includes few details but seems to allege constitutional
defects with Mr. Fulbright's 2014 Kansas conviction for
misdemeanor sexual battery. As relief, Plaintiff seeks a new
trial on the 2014 charge and removal from registration as a
sex offender under the Kansas Offender Registration Act
(KORA), K.S.A. 22-4901, et seq.
Court entered an Order (ECF No. 2) finding Plaintiff is
subject to the “three-strikes” provision under 28
U.S.C. § 1915(g). The Court examined the Complaint and
found no showing of imminent danger of serious physical
injury. The Court granted Plaintiff until December 4, 2018,
to submit the $400.00 filing fee. The Order was mailed to
Plaintiff at the Shawnee County Jail but was returned as
Plaintiff was no longer confined there. The Court entered a
new Order on December 10, 2018 (ECF No. 4), granting
Plaintiff until December 27, 2018 to submit the filing fee.
The Order was mailed to Plaintiff at the Larned State
Hospital. The Order provided that “[t]he failure to
submit the fee by that date will result in the dismissal of
this matter without prejudice and without additional prior
notice.” (ECF No. 4 at 2.) Plaintiff has failed to pay
the filing fee by the deadline set forth in the order.
41(b) of the Federal Rules of Civil Procedure
“authorizes a district court, upon a defendant's
motion, to order the dismissal of an action for failure to
prosecute or for failure to comply with the Federal Rules of
Civil Procedure or ‘a court order.'”
Young v. U.S., 316 Fed.Appx. 764, 771 (10th Cir.
2009) (citing Fed.R.Civ.P. 41(b)). “This rule has been
interpreted as permitting district courts to dismiss actions
sua sponte when one of these conditions is
met.” Id. (citing Link v. Wabash R.R.
Co., 370 U.S. 626, 630-31 (1962); Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).
“In addition, it is well established in this circuit
that a district court is not obligated to follow any
particular procedures when dismissing an action without
prejudice under Rule 41(b).” Young, 316
Fed.Appx. at 771-72 (citations omitted).
time in which Plaintiff was required to submit the filing fee
has passed. As a consequence, the Court dismisses this action
without prejudice pursuant to Rule 41(b) for failure to
comply with court orders.
be that, given the nature of Plaintiff's claims and
requested relief, his Complaint is more properly construed as
a petition for writ of habeas corpus. However, liberally
construing the Complaint as a habeas corpus action does not
save it. The Court does not have jurisdiction over
a habeas claim based on Mr. Fulbright's 2014 conviction
because he is no longer in custody pursuant to that
conviction. A petitioner seeking habeas relief must be in
custody under the challenged conviction or sentence at the
time the application is filed. Maleng v. Cook, 490
U.S. 488, 490-91 (1989). Nor is the resulting KORA registry
requirement a sufficient restraint on liberty to qualify as
being “in custody.” See Calhoun v. Att'y
General of Colorado, 745 F.3d 1070, 1074
(10th Cir. 2014). Moreover, Mr. Fulbright did not
exhaust his state court remedies, and his habeas claim is not
timely. See 28 U.S.C. § 2254(b)(1); 28 U.S.C.
§ 2244(d)(1). Finally, to the extent Mr. Fulbright is
raising a challenge to the pending state charges of failing
to register under KORA, the abstention doctrine precludes
this Court's intervention in a pending state prosecution.
See Younger v. Harris, 401 U.S. 37, 43 (1971);
see also Hicks v. Miranda, 422 U.S. 332, 349 (1975).
extent this order is considered a dismissal of a habeas
action, Rule 11 of the Rules Governing Section 2254 Cases
requires a district court to issue or deny a certificate of
appealability (“COA”) upon entering a final
adverse order. A COA may issue only if the petitioner made a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). “When the district court
denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim,
a COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). The failure to satisfy either prong
requires the denial of a COA. Id. at 485. The Court
finds nothing in the present record that suggests its ruling
is debatable or an incorrect application of the law and
therefore declines to issue a certificate of appealability.
these reasons, Mr. Fulbright's Complaint, even when
construed as a habeas petition, must be dismissed.
IS THEREFORE BY THE COURT ORDERED that this action
is dismissed without prejudice.
IS SO ORDERED.
 Case No. 14-CR-000833 in the District
Court of Shawnee County, Kansas.
 The Court incorporates by reference
the more detailed discussion of the reasons for dismissal
contained in its orders dismissing case numbers
18-cv-03190-SAC, 18-cv-03191-SAC, 18-cv-03192-SAC,