United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
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.
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.
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.
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).
of the Complaint
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
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.”).
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
he claims that the alleged wire fraud and allegedly forged
signature resulted in “false arrest, unlawful arrest,
illegal detention, illegal search and seizure”.
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.
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. §
2254(b)(1)(A)(requiring exhaustion of ...