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Randall v. City of Hutchinson

United States District Court, D. Kansas

September 4, 2019

LEROY RANDALL, Plaintiff,
v.
CITY OF HUTCHINSON, KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

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

         This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff, a prisoner in state custody, proceeds pro se and in forma pauperis.

         Background

         Plaintiff was convicted of aggravated robbery and two counts each of aggravated kidnapping and aggravated assault arising from the 2015 robbery of a Dollar General store in Hutchinson, Kansas. His direct appeal is pending.

         On June 7, 2019, the Court entered a Notice and Order to Show Cause (NOSC) directing plaintiff to show why this matter should not be dismissed. The NOSC identified several bases for dismissal: first, plaintiff's request for release from confinement must be presented in habeas corpus after he exhausts available state court remedies. Next, his claim for monetary damages for actions taken during the investigation and prosecution of the criminal cases against him is premature under Heck v Humphrey, 512 U.S. 477 (1994). Third, the defendant state court judges are subject to dismissal under the doctrine of judicial immunity, and the defendant prosecutor is subject to dismissal under the doctrine of prosecutorial immunity. Fourth, the defendant private attorneys are not state actors subject to suit under § 1983. Finally, the Court found the plaintiff's remaining claims were subject to dismissal because they failed to state a claim for relief or were legally frivolous.

         In response, plaintiff filed an amended complaint. The Court has conducted a review of that pleading under 28 U.S.C. § 1915A(a). Under that provision, a court must review and dismiss a complaint or any portion of it that presents claims that are frivolous, malicious, fails to state a claim for relief, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         Nature of the Complaint

         The amended complaint seeks relief from Sgt. Garrett Leslie, Det. Bryan Rodriguez, Lt. Marty Robertson, and Det. (fnu) Schoenoff of the Hutchinson Police Department; Verizon Wireless Company (Verizon); Dollar General Store employees Michael Behm and Jodi Welch; and unknown insurance companies for Verizon, the City of Hutchinson, Kansas, and Dollar General Store.

         The amended complaint presents three claims grounds for relief: First, plaintiff claims that defendant Leslie wrongfully sought to have the mobile telephone numbers of the two Dollar General employees “pinged” by Verizon. Plaintiff appears to allege that this violated federal law. Doc. 1, p. 5 (“No employee at the Dollar General Store was injured, hurt, or kidnapped; which constitutes elements to establish a viable reason to pursue (EMERGENCY SITUATION) disclosures from tele-communications carriers.”).

         Second, plaintiff alleges a “conspiracy against rights” in which he asserts that a search warrant issued in the criminal case bears a forged signature of a state magistrate judge.

         Third, he claims that the alleged wire fraud and allegedly forged signature resulted in “false arrest, unlawful arrest, illegal detention, illegal search and seizure”.

         As relief, he seeks conversion of this action to a petition for habeas corpus under 28 U.S.C. § 2254, reversal of his state conviction, and monetary damages.

         Discussion

         The amended complaint suffers from several defects. First, to the extent plaintiff seeks habeas corpus relief from his state conviction, his request is premature. He first must exhaust his claims by presenting them to the state courts before he may commence an action for federal habeas corpus. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)(prisoner seeking habeas corpus relief must exhaust state court remedies) and 28 U.S.C. ยง 2254(b)(1)(A)(requiring exhaustion of ...


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