United States District Court, D. Kansas
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 Saline
County Jail in Salina, Kansas. The Court granted Plaintiff
leave to proceed in forma pauperis.
November 11, 2019, the Court entered a Memorandum and Order
and Order to Show Cause (Doc. 5) (“MOSC”)
granting Plaintiff until December 6, 2019, in which to show
good cause why his Complaint should not be dismissed for the
reasons set forth in the MOSC. The Court granted Plaintiff an
extension of time to January 6, 2020, to respond to the MOSC.
Plaintiff has failed to respond by the Court's deadline.
Court found in the MOSC that Plaintiff's allegations in
his Complaint involve his state criminal proceedings.
Plaintiff sues the prosecuting attorney and defense counsel.
Plaintiff alleges that he was arrested on July 11, 2018, in
Saline County, Kansas, for two counts of Aggravated Burglary,
Felony Theft, Felony Fleeing or Attempting to Elude Police
Officer(s), Felony Criminal Damage to Property, Reckless
Driving, Criminal Damage to Property, Theft, Driving While
License Cancelled, and Interference with Law Enforcement.
Plaintiff alleges ineffective assistance of counsel, a due
process violation, and “rights of due diligence.”
alleges that false testimony was given at his preliminary
hearing and his defense attorney, Defendant Effenbeck, failed
to bring light to the matter upon Plaintiff's request and
failed to instruct the trial judge according to the pattern
instructions. Plaintiff alleges that Defendant Effenbeck
withdrew from his case and Defendant Brave was appointed to
represent Plaintiff. Plaintiff alleges that Defendant Brave
refused to order transcripts from the preliminary hearing and
forced Plaintiff to enter a plea.
Court found in the MOSC that Plaintiff names the Saline
County Attorney, Ellen Mitchell, as a Defendant. Although
Plaintiff fails to mention Defendant Mitchell in the body of
his Complaint, any claim against Defendant Mitchell would
nevertheless fail on the ground of prosecutorial immunity.
Prosecutors are absolutely immune from liability for damages
in actions asserted against them for actions taken “in
initiating a prosecution and in presenting the State's
case.” Imbler v. Pachtman, 424 U.S. 409, 431
(1976). Plaintiff's claims concerning his criminal case
fall squarely within the prosecutorial function. Plaintiff
has failed to show cause why his claims against Defendant
Mitchell should not be dismissed based on prosecutorial
Court also found in the MOSC that Plaintiff's claims
against his defense attorneys are subject to dismissal for
failure to state a claim because Plaintiff has not shown that
they were acting under color of state law as required under
§ 1983. See Polk Cty. v. Dodson, 454 U.S. 312,
318-19, 321-23 (1981) (assigned public defender is ordinarily
not considered a state actor because their conduct as legal
advocates is controlled by professional standards independent
of the administrative direction of a supervisor); see
also Vermont v. Brillon, 556 U.S. 81, 91 (2009);
Dunn v. Harper County, 520 Fed.Appx. 723, 725-26,
2013 WL 1363797 at *2 (10th Cir. Apr. 5, 2013) (“[I]t
is well established that neither private attorneys nor public
defenders act under color of state law for purposes of §
1983 when performing traditional functions as counsel to a
criminal defendant.” (citations omitted)). A criminal
defense attorney does not act under color of state even when
the representation was inadequate. Briscoe v. LaHue,
460 U.S. 325, 330 n.6 (1983).
Court also found that 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. In Heck v.
Humphrey, the United States Supreme Court held that when
a state prisoner seeks damages in a § 1983 action, the
district court must consider the following:
whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.
Heck v. Humphrey, 512 U.S. 477, 487 (1994). In
Heck, the Supreme Court held that a § 1983
damages claim that necessarily implicates the validity of the
plaintiff's conviction or sentence is not cognizable
unless and until the conviction or sentence is overturned,
either on appeal, in a collateral proceeding, or by executive
order. Id. at 486-87.
Court also found that to the extent Plaintiff challenges the
validity of his sentence or conviction, his federal claim
must be presented in habeas corpus. However, a petition for
habeas corpus is premature until Plaintiff has exhausted
available state court remedies. See 28 U.S.C. §
2254(b)(1)(A) (requiring exhaustion of available state court
has failed to respond to the MOSC by the Court's deadline
and has failed to show good cause why his Complaint should
not be dismissed for failure to state a claim.
IS THEREFORE ORDERED THAT this matter is dismissed
for failure to state a claim.