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Burnett v. Reno County Commission

United States District Court, D. Kansas

March 1, 2019

FRANK JAMES BURNETT, Plaintiff,
v.
RENO COUNTY COMMISSION, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE.

         Plaintiff Frank James Burnett, an inmate at the Reno County Correctional Facility in Hutchinson, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted his motion to proceed in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why Defendants Reno County Commission, Reno County Sheriff's Department, Reno County District Attorney's Office, Hutchinson Police Department and Natasha Esau should not be dismissed. Plaintiff is also ordered to notify the Court as to whether his state criminal proceedings are ongoing and whether his claims should be stayed under Younger.

         I. Nature of the Matter before the Court

         Plaintiff alleges that on July 25, 2017, Corey Graber, the head of the Sheriff's Drug Enforcement Unit, and Hutchinson Police Officer Jon Suda, conspired to falsely arrest and incarcerate Plaintiff. Plaintiff alleges that Graber targeted him and arrested him for possession of methamphetamine, possession of a firearm, and possession of drug paraphernalia with intent to ingest. Plaintiff alleges that Graber and Suda used perjured affidavits and testimony in bringing false charges against Plaintiff. Plaintiff alleges that the District Attorney and Randy Henderson from the Sheriff's Office “intentionally and willfully supported and assisted this false arrest” by refusing to provide Brady materials and possessing proof of Plaintiff's innocence “from the beginning of this tragic event” through bodycam footage, audio and obviously-false police reports. Plaintiff alleges that he has been forced to defend himself, causing him to lose his car, his job, and his personal relationship. Plaintiff alleges that he stayed in Hutchinson to fight the charges and this resulted in him receiving another felony charge. Plaintiff alleges that Graber has been seeking retaliatory and harassing revenge on Plaintiff due to a previous suit Plaintiff filed against the department.

         Plaintiff states in his Complaint that his claims were previously presented at his preliminary hearing and arraignment, and in multiple other motions and pleadings. Plaintiff seeks compensatory and punitive damages. Plaintiff names as Defendants: Reno County Commission; Reno County Sheriff's Department; Reno County District Attorney's Office; Hutchinson Police Department; Randy Henderson; Corey Graber; Jon Suda; and Natasha Esau.

         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 an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)- (2).

         “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

         1. Improper Defendants

         To impose § 1983 liability on the county and its officials for acts taken by its employee, plaintiff must show that the employee committed a constitutional violation and that a county policy or custom was “the moving force” behind the constitutional violation. Myers v. Oklahoma Cty. Bd. of Cty. Comm'rs, 151 F.3d 1313, 1318 (10th Cir. 1998) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 695 (1978)). The Supreme Court explained that in Monell they decided “a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue, ” and “there are limited circumstances in which an allegation of a ‘failure to train' can be the basis for liability under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385-86 (1989). Plaintiff has pointed to no policy or deficiency in the training ...


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