United States District Court, D. Kansas
MICHAEL D. BENSON, Plaintiff,
TOPEKA POLICE DEPARTMENT, et al., Defendants.
MEMORANDUM AND ORDER
Crow, U.S. Senior District Judge.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is detained at the Shawnee
County Jail in Topeka, Kansas. The Court granted Plaintiff
leave to proceed in forma pauperis. On September 18,
2018, the Court entered a Memorandum and Order and Order to
Show Cause (Doc. 9) (“MOSC”), granting Plaintiff
until October 18, 2018, in which to show good cause why his
Complaint should not be dismissed for the reasons set forth
in the MOSC. Plaintiff failed to respond, and on October 23,
2018, the Court dismissed this matter without prejudice under
Fed.R.Civ.P. 41(b). (Docs. 12, 13.) On May 15, 2019, the
Court granted Plaintiff's motion to reopen the case, and
granted Plaintiff until May 31, 2019, in which to show good
cause why this action should not be dismissed due to the
deficiencies set forth in the Court's MOSC at Doc. 9.
(Doc. 16.) Plaintiff filed a Response (Doc. 17) to the MOSC,
and the Court entered a Memorandum and Order and Order to
Show Cause (Doc. 19), granting Plaintiff until July 12, 2019,
in which to show good cause why his Complaint should not be
dismissed for the reasons set forth therein and in the
Court's MOSC at Doc. 9. Plaintiff has failed to respond
by the deadline.
allegations in his Complaint involve his state criminal
proceedings. Plaintiff alleges that he was arrested for
domestic battery without a warrant. Plaintiff alleges that
during the arrest, Topeka police officers used excessive
force and were inadequately trained. Plaintiff alleges that
he was booked into the Shawnee County Jail on frivolous
charges of aggravated battery on a LEO and possession of drug
paraphernalia. Plaintiff alleges a violation of his Fourth
Amendment right to be free from unreasonable search and
seizures and a violation of his Fourteenth Amendment right to
due process. Plaintiff names the Topeka Police Department and
the Topeka City Attorney as defendants.
online Kansas District Court Records Search indicates that
Plaintiff pleaded nolo contendere to Interference with LEO,
obstruct/resist/oppose misdemeanor warrant service or
execution, and was placed on twelve months of supervised
probation. See State v. Benson, No. 18-cr-1447
(Shawnee County District Court). Plaintiff's probation
was subsequently revoked for violations of his conditions of
probation. Id. Plaintiff's state criminal case
charging him with Aggravated Domestic Battery, Attempted
Aggravated Assault, Criminal Possession of Weapon by a Felon,
Interference with LEO, Criminal Threat, and Use/Possess With
Intent to Use Drug Paraphernalia, is still pending. See
State v. Benson, No. 18-cr-1359 (Shawnee County District
Court). Plaintiff pleaded guilty to several of the charges
and sentencing is scheduled for July 26, 2019.
Court found in the MOSC that: the Court may be prohibited
from hearing Plaintiff's claims relating to his state
criminal case under Younger v. Harris, 401 U.S. 37,
45 (1971); to the extent Plaintiff challenges the validity of
any sentence or conviction, his federal claim must be
presented in habeas corpus; if Plaintiff has been convicted
and a judgment on Plaintiff's claim in this case would
necessarily imply the invalidity of that conviction, the
claim may be barred by Heck; and Plaintiff's
claims against the Topeka City Attorney fail on the ground of
prosecutorial immunity. Plaintiff's response to the MOSC
fails to address any of these deficiencies. In addition, the
Topeka Police Department is not a proper defendant, as
“‘police departments . . . are not suable
entities under § 1983, because they lack legal
identities apart from the municipality.'” Young
v. City of Albuquerque, 77 F.Supp.3d 1154, 1186 (D. N.M.
2014) (quoting Ketchum v. Albuquerque Police
Dep't, 958 F.2d 381, 1992 WL 51481, at *2 (10th Cir.
March 12, 1992)).
21, 2019, the Court granted Plaintiff until July 12, 2019, in
which to show cause why this matter should not be dismissed
for the reasons set forth in the Court's Memorandum and
Order to Show Cause (Doc. 19) as well as the Court's MOSC
at Doc. 9. Plaintiff has failed to respond by the deadline.
The Court finds that this case should be dismissed for
failure to state a claim.
IS THEREFORE ORDERED THAT this case is
dismissed for failure to state a claim.
IS SO ORDERED.
 Plaintiff has another case pending
based on charges of Aggravated Domestic Battery and Domestic
Battery with a pretrial hearing scheduled for June 28, 2019.
See State v. Benson, No. ...