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Jackson v. Ash

United States District Court, D. Kansas

April 22, 2019

MARCUS SHAMILLYON JACKSON, Plaintiff,
v.
DONALD ASH, Sheriff, Wyandotte County Sheriff's Department, et al, Defendants.

          REPORT AND RECOMMENDATION

          GWYNNE E. BIRZER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Amended Complaint (ECF No. 29) and Plaintiff's Response (ECF No. 31) to this Court's November 16, 2018 Memorandum and Order and Order to Show Cause (ECF No. 28). Because Plaintiff's Amended Complaint and Response fail to address the concerns raised not only in the November 16, 2018 Memorandum and Order and Order to Show Cause, but also in the Court's earlier December 22, 2017 Memorandum and Order and Order to Show Cause (ECF No. 5), the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), issues the following report and recommendation of DISMISSAL.

         I. Background

         A. Original Complaint

         On May 11, 2017, Plaintiff filed a Complaint alleging civil rights violations pursuant to 42 U.S.C. § 1983.[1] Plaintiff's claims therein stem from his state criminal proceedings in Wyandotte County, Kansas where Plaintiff was convicted of an October 8, 2015 aggravated burglary and fleeing or attempting to elude a police officer.[2] Before describing Plaintiff's claims in more detail, a brief summary of Plaintiff's criminal proceedings is in order.

         On October 9, 2015, a Kansas City, Missouri Police Department detective submitted an affidavit to the Wyandotte County District Court seeking an arrest warrant for Plaintiff regarding the above-mentioned crimes.[3] According to this affidavit, Plaintiff and an associate, Carl Williams, emerged as suspects pursuant to an investigation by the police regarding a string of recent burglaries in the Kansas City area. The police determined Plaintiff and Williams had pawned items stolen during those burglaries.

         Accordingly, on October 8, 2015, the police were conducting surveillance on Plaintiff, who was driving a Buick Rendezvous. During this surveillance, a 911 call came in about a burglary in progress in the area where Plaintiff's vehicle was located. The homeowners who made the call were awakened by their dog growling and, upon investigation, found a person dressed in all black in the living room. The individual then ran out an open sliding glass door. One homeowner saw two other persons in the backyard who took off running after the first individual. The homeowner noticed several items missing from a side table near the sliding glass door, and found a gun magazine in the backyard.[4]

         Shortly thereafter, an officer located Plaintiff's Buick Rendezvous fleeing the area and tried to stop it, but the Buick fled. After being pursued by the police for a time, the Buick crashed into a train bridge and caught on fire. At least one occupant fled the vehicle. Police approached the vehicle to look for other occupants, and found Carl Williams, injured, lying next to the car. The police took Williams into custody.[5]

         Meanwhile, Plaintiff was captured on a police vehicle's in-car video system fleeing the scene on foot. Plaintiff was eventually found hours later by a police officer responding to a suspicious person call. A shoe was recovered near the Buick, and when Plaintiff was taken into custody he was missing a shoe. The shoe he was wearing matched the shoe left at the scene.[6]

         After Plaintiff was taken into custody, he was transported to the Detective Bureau for an interview by a Detective Fithian. After Plaintiff was read his Miranda rights, he asked to have a lawyer present for any questioning. After this request, the interview ended, and Plaintiff was booked into the Wyandotte County Jail on a 48-hour hold.[7]

         As stated above, on October 9, 2015, the affidavit for the arrest warrant was presented to a Wyandotte County state court judge. The judge signed the arrest warrant that same day (October 9), which was a Friday.[8] The following Tuesday, October 13, 2015, the arrest warrant was filed in state court and issued to the Wyandotte County Sherriff, who arrested Plaintiff that day.[9] Plaintiff made a first appearance in court the next day, October 14, 2015, and bond was set at $50, 000.00.[10]

         Plaintiff's case proceeded to trial in March of 2017.[11] Williams testified against Plaintiff, [12] and Plaintiff was convicted by a jury of both aggravated burglary and fleeing/eluding.[13] Plaintiff went through several court-appointed attorneys, but was represented at trial by Mark Birmingham.[14] While several Wyandotte County District Court judges made rulings in Plaintiff's case, the primary judge was Judge J. Dexter Burdette.[15] Judge Burdette presided over Plaintiff's jury trial, and as will be relevant here, denied a pretrial Motion to Suppress Arrest and Warrant filed by Plaintiff. Judge Burdette ruled sufficient evidence was present in the affidavit and arrest warrant to show probable cause for Plaintiff's arrest.[16] Plaintiff was sentenced on December 1, 2017[17] and is currently incarcerated at Norton Correctional Facility. Plaintiff has been in jail since he was taken into custody on October 8, 2015.[18]

         Returning to the substance of Plaintiff's Complaint filed in this Court on May 11, 2017, Plaintiff asserted various § 1983 claims against multiple defendants. First, Plaintiff alleged the Wyandotte County District Court judges involved in his criminal proceedings engaged in judicial misconduct. Second, Plaintiff claimed each of his court-appointed defense attorneys provided ineffective assistance of counsel. Third, Plaintiff alleged the Wyandotte County prosecutors involved in his case engaged in malicious prosecution.[19]

         And finally, Plaintiff asserted unlawful detention claims against the Wyandotte County Unified Government, Wyandotte County Sheriff Donald Ash, Wyandotte County Deputy Jeffrey Fewell, an unknown Wyandotte County Sheriff's Department Deputy, and Detective Fithian (collectively referred to as “Wyandotte County Government Defendants”). Specifically, Plaintiff claimed there was no probable cause to detain him on a 48-hour hold following his October 8, 2015 interview at the Detective Bureau. And, although the 48-hour hold expired on October 10, 2015, Plaintiff alleged he continued to be held without probable cause until his arrest on October 13, 2015, in violation of his constitutional rights. As relief, Plaintiff sought money damages and dismissal of his state criminal convictions with prejudice.[20]

         B. December 22, 2017 Memorandum and Order and Order to Show Cause

         On December 22, 2017, Senior District Judge Sam A. Crow entered a Memorandum and Order and Order to Show Cause (“MOSC I”).[21] The MOSC I gave Plaintiff until January 22, 2018, to show cause why the claims against the Wyandotte County judges, Wyandotte County prosecutors, and defense attorneys should not be dismissed.[22]

         Regarding the claims against the Wyandotte County judges and prosecutors, the Court explained these defendants are likely entitled to judicial immunity and prosecutorial immunity, respectively, and should be dismissed because Plaintiff alleged no facts suggesting any judge or prosecutor acted outside their judicial or prosecutorial capacities.[23]Regarding the claims against the defense attorneys, the Court noted Plaintiff failed to show they were acting under color of state law as required under § 1983 and court-appointed attorneys are generally not considered state actors.[24]

         Regarding the Wyandotte County Government Defendants, the Court held it could not properly process Plaintiff's unlawful detention claims without additional information, and ordered those Defendants to prepare a Martinez Report.[25] But, the Court noted Plaintiff would not be entitled to damages on his unlawful detention claims if he was receiving credit for the time he served during any alleged illegal detainment period.[26]

         On January 23, 2018, due to Plaintiff's failure to respond to the MOSC I by the January 22, 2018 deadline, the Court dismissed the named Wyandotte County judges, Wyandotte County prosecutors, and defense attorneys.[27] On April 20, 2018, the Wyandotte County Government Defendants filed a Martinez Report stating Plaintiff's constitutional rights regarding the 48-hour hold were not violated because an arrest warrant was signed on October 9, 2015, within 48 hours of his initial arrest. They reported that presumably the arrest warrant was not filed with the state court until the next Tuesday, October 13, 2015, because of the ensuing weekend (October 9 was a Friday) and the court being closed on Monday, October 12, 2015, due to a holiday.[28]

         C. Plaintiff's July 4, 2018 Motion to Leave and Amend Complaint

         On July 4, 2018, Plaintiff filed a Motion to Leave and Amend Complaint, [29] seeking to add claims regarding Detective Fithian directly lying in the October 9 affidavit submitted to procure his arrest.[30] Plaintiff attached a proposed five-page Amended Complaint to his Motion (referred to herein as “Proposed Amended Complaint”).[31] Although Plaintiff failed to list any defendants in the caption of the Proposed Amended Complaint, the body of the pleading shows Plaintiff is making claims against Detective Fifthian and the other Wyandotte County Government Defendants previously mentioned.[32]

         Similar to the original Complaint, Plaintiff's Proposed Amended Complaint claims he was unlawfully detained between October 8, 2015 and October 13, 2015 due to the actions of these Wyandotte County Government Defendants. Plaintiff additionally makes false arrest claims against Detective Fithian for lying or purposefully omitting important information from the arrest warrant affidavit. Plaintiff failed to list any relief in his Proposed Amended Complaint.[33]

         D. November 16, 2018 Memorandum and Order and Order to Show Cause

         On November 16, 2018, Judge Crow entered another Memorandum and Order and Order to Show Cause (“MOSC II”), which granted Plaintiff's July 4, 2018 Motion to Leave and Amend Complaint with certain caveats.[34] The Court noted Plaintiff's Proposed Amended Complaint was not submitted using the court-approved form, failed to name any defendants in the caption, and failed to request any form of relief. The Court stated it would give Plaintiff an opportunity to resubmit his Amended Complaint on a court-approved form to fix these deficiencies, but also ordered Plaintiff to show cause why his Amended Complaint should not be dismissed based on previous rulings made in the MOSC I.[35] The Court also informed Plaintiff that Judge Burdette's finding of sufficient evidence in the affidavit and arrest warrant to establish probable cause for his arrest would likely be subject to collateral estoppel, potentially dooming his false arrest claims.[36] The Court gave Plaintiff until December 17, 2019 to file an Amended Complaint and respond to the MOSC II.[37]

         E. Plaintiff's Amended Complaint

         Plaintiff filed an Amended Complaint on December 10, 2018.[38] While Plaintiff did use the court-approved form, add defendants to the caption, and list his requested relief, Plaintiff expanded his five-page Proposed Amended Complaint into a twenty-eight page, single-spaced Amended Complaint that not only adds new defendants and new claims, but also brings back defendants and claims already dismissed.[39] In addition to the Wyandotte County Government Defendants named in his Proposed Amended Complaint, Plaintiff adds Kansas City, Kansas Police Detectives (fnu) Hrgota and (fnu) Santana; Wyandotte County Sherriff Deputies (fnu) Wooten and (fnu) Green; and reasserts claims against defense attorney Mark Birmingham and Judge Burdette.[40]

         While Plaintiff's Amended Complaint is, at times, difficult to comprehend, it is clear he is claiming civil rights violations pursuant to 42 U.S.C. §§ 1983 and 1985(3).[41]Plaintiff's allegations, as gleaned by the Court, can be summarized into the following categories: (1) ineffective assistance of counsel claims against Mark Birmingham; (2) claims of bias against Judge Burdette based on rulings made during Plaintiff's criminal case; (3) unlawful detainment claims between the time period October 8, 2015 and October 13, 2015; (4) false arrest claims regarding Detectives Fiathian, Hrgota, and Santana's alleged use of false evidence and false statements in the arrest warrant affidavit; and (5) new claims of excessive force and threats and failure to report the same against Defendants Fiathian, Hrgota, Santana, Green and Wooten.[42]

         For relief, Plaintiff requests his criminal convictions be reversed and seeks over $17 million in damages.[43]

         F. Plaintiff's Response to MOSC II

         In addition to filing the Amended Complaint, Plaintiff filed a Response to the MOSC II.[44] In the Response, Plaintiff states he did not receive the MOSC I until March of 2018 and would still like to pursue claims against Mark Birmingham, Judge Burdette and the Wyandotte County prosecutors. Other than summarizing the same claims previously stated in the original Complaint and reasserted in the Amended Complaint as outlined above, Plaintiff does not state why he should be allowed to pursue his claims against Mr. Birmingham and Judge Burdette. Regarding the prosecutors, Plaintiff states nothing other than his desire to pursue the previously dismissed malicious prosecution claims. Similarly, to support his unlawful detention and false arrest claims, Plaintiff merely restates the same claims he asserts in the Amended Complaint.[45]

         G. Reassignment and Screening Requirement

         On January 4, 2019, this case was reassigned from Judge Crow to District Judge John W. Broomes and the undersigned Magistrate Judge for all further proceedings.[46] As stated in the MOSC I and II, [47] and pursuant to Prison Litigation Reform Act of 1995[48] (see specifically 28 U.S.C. § 1915A), [49] the Court is required to screen complaints filed by prisoners seeking relief against a government entity and its officers/employees. And, also pursuant to that Act (see specifically § 1915A(b)(1)), the Court must dismiss a complaint if it fails to state a claim upon which relief may be granted.[50] After a considerable and deliberate review, and keeping in mind Plaintiff's pro se status, the undersigned, for the reasons stated herein, finds Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted, and thus recommends dismissal.

         II. Legal Standard

         As stated above, pursuant to § 1915A(b)(1), the Court must dismiss a complaint if it fails to state a claim upon which relief may be granted. “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.”[51] Courts liberally construe pro se complaints and apply “less stringent standards than formal pleadings drafted by lawyers.”[52] In addition, courts accept all well-pleaded allegations in the complaint as true.[53] On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate.[54]

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.”[55] “[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.”[56] 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.”[57] 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.”[58]

         III. Discussion

         A. Plaintiff's Claims against Wyandotte County Prosecutors, Wyandotte County Judge Burdette, and Defense Attorney Mark Birmingham.

         After Plaintiff failed to respond the MOSC I, the Court dismissed the above parties from this lawsuit.[59] This alone, it should be noted, is enough to recommend dismissal of any renewed claims against these parties. However, given Plaintiff's pro se status and statement in his Response to the MOSC II he did not receive the MOSC I until March of 2018, after the January 22, 2018 deadline, the Court will analyze Plaintiff's renewed claims.

         In Plaintiff's Response to the MOSC II, Plaintiff reiterates his desire to pursue malicious prosecution claims against the Wyandotte County prosecutors. However, the Response contains no explanation as to why his claims against the prosecutors should go forward given their absolute immunity regarding prosecutorial functions as explained in the MOSC I.[60] Additionally, Plaintiff fails to name the prosecutors as defendants in his Amended Complaint, and fails to make allegations that the prosecutors, in pursuing Plaintiff's criminal case, were acting outside of their protected prosecutorial capacities.[61]Therefore, to the extent any claims remain against any Wyandotte County prosecutors, the undersigned recommends DISMISSAL.

         Plaintiff also renews claims against state court defense counsel, Mark Birmingham. Plaintiff lists several reasons why he believes Mr. Birmingham gave him ineffective counsel, including failure to seek recusal of Judge Burdette, failure to object to certain evidence and call certain witnesses during trial, and lack of communication. However, Plaintiff does not explain how Mr. Birmingham is a state actor, which is required for any § 1983 claim as explained in the MOSC I.[62] Plaintiff does state Mr. Birmingham was a court-appointed attorney; however, such attorneys, even if paid for by the state, are not deemed state actors.[63] Therefore, it is recommended all claims against Mark Birmingham be DISMISSED.

         As to Judge Burdette, Plaintiff reasserts claims of bias against him due to alleged dislike of Plaintiff filing pro se motions during the criminal proceedings. Plaintiff also alleges Judge Burdette violated his constitutional rights by admitting prior bad acts evidence at trial and failing to investigate possible conflicts and lack of communication issues between Plaintiff and Mr. Birmingham. However, Plaintiff fails to overcome the issue of judicial immunity as stated in the MOSC I:

A state judge is absolutely immune from § 1983 liability except when the judge acts “in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (articulating broad immunity rule that a “judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority . . . .”); Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). Only actions taken outside a judge's judicial capacity will deprive the judge of judicial immunity.”[64]

         Similar to the original Complaint, neither the Amended Complaint nor Response to the MOSC II allege any facts suggesting Judge Burdette acted outside of his judicial capacity.[65] Therefore, due to judicial immunity, it is recommended all claims against Judge Burdette be DISMISSED.

         B. Plaintiff's Unlawful Detention Claims

         Plaintiff claims he was unlawfully detained from October 8, 2015 (the date he was initially taken into custody by police) until October 13, 2015 (the date of his arrest pursuant to the arrest warrant). Plaintiff alleges Detective Fithian lacked probable cause to place a 48-hour hold on him after his interview ended on October 8, 2015. Plaintiff also claims he should have been released on October 10, 2015, after the 48 hours expired because no probable cause determination had been made at that time. Plaintiff asserts he repeatedly asked Wyandotte County deputies to release him after the 48 hours expired, but was refused. As such, Plaintiff alleges Defendant Sherriff Ash failed to have a policy in place for deputies to comply with one's constitutional rights upon expiration of a 48-hour hold.

         However, as stated in the MOSCI, Plaintiff's unlawful detention claims face a major obstacle:

Plaintiff was sentenced in state court on December 1, 2017. It is unclear whether Plaintiff received credit for the time he spent in custody following his initial arrest-the same time he now contends he was unlawfully detained. See Ewell v. Toney, 853 F.3d 911, 917 (7th Cir. 2017). “[A] section 1983 plaintiff may not receive damages for time spent in custody, if that time was credited to a valid and lawful sentence.” Id. (citations omitted). Plaintiff must show that he was injured by the presumptively unreasonable delay of more than 48 hours. If Plaintiff is not entitled to seek damages related to his detention, then there is no injury that a favorable decision by a federal court may redress.[66]

         Nowhere in his Response to the MOSC II or Amended Complaint does Plaintiff address this issue. Plaintiff only states he has been jailed since October 8, 2015, [67] leading the Court to believe he is receiving credit for time served, and thus not entitled to seek damages related to his alleged unlawful detention. Without a redressable injury, Plaintiff lacks Article III standing to pursue these claims.[68]

         Additionally, there is no evidence that a constitutionally sufficient and timely probable cause determination was not made on October 9, 2015 when the state court judge reviewed the affidavit and signed the arrest warrant.[69] While the Fourth Amendment, which protects against unreasonable seizures, requires a judicial probable cause determination within 48 hours of a warrantless arrest and continuing detention, it does not require a particular format for the judicial determination or that the arrested person be present.[70]

         Plaintiff, however, seems to assert some sort of fraud or conspiracy existed to “back-date” the warrant to October 9 to show the appearance of a probable cause determination within 48 hours. But, Plaintiff's allegations are conclusory and lack any supporting factual detail other than Plaintiff's belief the various defendants are biased against him because of his race and status as a “convicted felon.”[71] A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.”[72] To be facially plausible, the complaint must contain factual content from which a court can reasonably infer the defendants are liable for the misconduct alleged.[73]Plaintiff has not alleged facts from which the Court can reasonably infer a conspiracy to back-date the arrest warrant.

         For the above reasons, the undersigned recommends DISMISSAL of all of Plaintiff's unlawful detention claims.

         C. Plaintiff's False Arrest Claims

         Plaintiff claims his arrest was unlawful. In support, he alleges Detective Fithian made false statements and used false evidence in making the arrest warrant affidavit. Plaintiff also alleges Detectives Hrgota and Santana conspired to get false statements from Carl Williams for use in the affidavit.

         In the MOSC II, the Court noted Judge Burdette ruled there was sufficient evidence presented in the arrest warrant and affidavit to support probable cause for the arrest.[74] This Court explained the state court's ruling may require the application of collateral estoppel upon final adjudication of the state court case.[75] This is so because probable cause for the arrest would negate any false arrest claim.[76] Neither Plaintiff's Amended Complaint nor Response to the MOSC II contain statements as to why collateral estoppel would not apply upon final adjudication. This Court, however, notes Plaintiff's state court criminal case has not been finally adjudicated. On February 8, 2019, the Kansas Court of Appeals upheld Plaintiff's convictions.[77] But, the Kansas Appellate Courts' on-line case inquiry system shows Plaintiff filed a Petition for Review on March 11, 2019. Thus, collateral estoppel cannot yet apply.

         However, the Younger abstention doctrine precludes this Court from interfering with pending state court proceedings.[78] In determining whether Younger abstention applies, a court considers whether: “(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.”[79] The Court finds all three factors met here as Plaintiff's ...


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