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Loggins v. Pilshaw

United States District Court, D. Kansas

March 27, 2019

KEVIN D. LOGGINS, SR., Plaintiff,
REBECCA L. PILSHAW, et al., Defendants.



         Pro se plaintiff Kevin D. Loggins, Sr., a Hutchinson Correctional Facility prisoner, brings the following motions before the court as part of his 42 U.S.C. § 1983 claim: Motion to Change Venue (Doc. 4); Motion for TRO and Preliminary Injunctions (Doc. 6); Motion for Hearing (Doc. 13); Motions to Consolidate Cases (Docs. 14, 16, 17); and Motion for Leave to Amend Complaint (Doc. 18). For the reasons discussed below, the court grants plaintiff's Motion for Leave to Amend Complaint and denies the rest of his motions.

         Plaintiff may file an Amended Complaint, but it must address the deficiencies identified by the court. For example, plaintiff should identify whether he asks for relief besides an order releasing him from confinement. If plaintiff seeks such relief, he must identify it precisely and explicitly. Also, plaintiff has sued 38 defendants. Upon screening, many defendants appear to be immune from suit. So, plaintiff's Amended Complaint must plead facts sufficient to show why these immunities do not bar his claims against those defendants. Last, plaintiff brings state law and criminal claims under § 1983. But, plaintiff's Amended Complaint must address the court's conclusion that § 1983 is an improper vehicle for these claims. In sum, plaintiff may file an Amended Complaint, but it must address the deficiencies identified in this Order.

         1. Facts

         Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983 and has paid the filing fee. Doc. 1. Plaintiff is a prisoner at the Hutchinson Correctional Facility in Hutchinson, Kansas. Plaintiff alleges that he was incarcerated wrongfully because of errors committed in his underlying criminal proceedings. Plaintiff names 38 defendants: multiple state court and federal judges; court reporters; an assistant district attorney; the Clerk of the Sedgwick County District Court; the Governor of the State of Kansas; Sedgwick County Commissioners; the Sedgwick County Counselor; Jeff Easter, Sedgwick County Sheriff; Joseph Norwood, Secretary of Corrections for KDOC; and the Clerk of the Kansas Court of Appeals.[1]

         Plaintiff alleges that in November 1995, District Court Judge Rebecca L. Pilshaw presided over his state court criminal proceedings in Sedgwick County, Kansas, No. 95cr1859. Plaintiff alleges that, although the prosecution declined to add a charge of Aggravated Sexual Battery, Judge Pilshaw “abandon[ed] her color as a neutral, detached and impartial adjudicator and became an advocate and partisan for the prosecutor's case.” Doc. 1 at 2. Plaintiff alleges that Judge Pilshaw stated on the record that she was interested in adding an Aggravated Sexual Assault charge against plaintiff and finding cause to bound him over on that charge. Later that same day, a hearing was held before Judge Clark Owens II. Assistant District Attorney David Kaufman and plaintiff's court-appointed attorney attended the hearing, but plaintiff alleges he did not attend. Judge Owens acknowledged that Judge Pilshaw added additional charges and stated that an amended complaint had been filed reflecting those charges. But, the amended complaint was not filed until 12 days after the hearing. Plaintiff argues that despite Kan. Stat. Ann. § 22-3205's mandatory language requiring him to be physically present, the judge allowed counsel to waive plaintiff's right to fair notice and enter a plea on his behalf.

         Plaintiff's case proceeded to trial, and he was convicted. Plaintiff alleges that Judge Pilshaw and her court reporter, Diana Nichols, “spoliated the record by tampering with it to alter it, conceal[ed] the content of Judge Pilshaw's advocacy for the state case, and withheld said contents from defendant's appellate counsel, and the defendant.” Doc. 1 at 10. Plaintiff alleges that the spoliated portion of the record was not made available to plaintiff until September 13, 2003. Plaintiff also alleges that Judge Owen's court reporter, Lou Ann Hale, likewise withheld the arraignment transcript from defendant and his appellate counsel, and he did not receive his transcript in No. 95cr1859 until August 12, 2005, and his transcript in No. 95cr1616 until June 1, 2015. Plaintiff also alleges that Bernadine Lamberas, Clerk of the Sedgwick County District Court, withheld transcripts and that Douglas Shima, Clerk of the Kansas Court of Appeals, denied his motion that would have directed the District Court of Sedgwick County to produce those transcripts.

         Plaintiff alleges that Sedgwick County Counselor Richard A. Euson advised or participated in creating a county policy that destroyed documents with evidentiary value. And, plaintiff alleges that four Sedgwick County Commissioners named in his Complaint-David M. Unruh, Tim R. Norton, Karl Peterjohn, and Richard Ranzau-signed that county policy into law.

         Plaintiff alleges that all the judgments entered in the Sedgwick County District Court, the Kansas Court of Appeals, as well as the United States District Court for the District of Kansas, are void. Plaintiff alleges that the judgments are void based on lack of jurisdiction and “violation of Plaintiff's speedy trial rights.” Doc. 1 at 15. Plaintiff alleges that because the Governor is the “chief political head for the State of Kansas, ” all acts are being done on the Governor's behalf. Id.

         Plaintiff alleges that the Assistant District Attorney conspired with Judges Clark and Pilshaw to violate his constitutional rights. Plaintiff alleges that Sheriff Jeff Easter and Secretary of Corrections Joseph Norwood acted on unlawful or void orders to restrain plaintiff and deprive him of his liberty. Plaintiff alleges that in Nos. 99-3102-DES, 11-3106-SAC, and 10-3060-RDR, the United States District Court judges entered “void judgments upon the void judgments of conviction” in his state cases. Id. at 16.

         Plaintiff seeks monetary damages, equitable relief, injunctive relief, and declaratory relief based on his false imprisonment. Plaintiff asks the court to vacate his judgment of conviction and release him from imprisonment.

         II. Legal Standard

         A. 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 any portion of it if a complaint raises 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). Also, the court accepts all well-pleaded allegations as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). But, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atl. 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). Although this standard “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” which, as the Supreme Court has explained, simply “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). In short, the court need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 557 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation omitted).

         The Tenth Circuit 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).

         Our Circuit also has held 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 (internal quotation marks and 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, 550 U.S. at 570).

         III. Discussion

         A. Habeas ...

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