United States District Court, D. Kansas
KEVIN D. LOGGINS, SR., Plaintiff,
REBECCA L. PILSHAW, et al., Defendants.
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Statutory Screening of Prisoner Complaints
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. §
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).
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
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)
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).