IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
MATTHEW JOB DALY,
Plaintiff,
v. CASE NO. 24-3219-JWL
BRANDON JONES, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Matthew Job Daly is hereby required to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. Plaintiff is also given the opportunity to file an amended complaint to cure the deficiencies. I. Nature of the Matter before the Court Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. The Court grants Plaintiff’s motion for leave to proceed in forma pauperis. Although Plaintiff is currently out of custody, his claims arose during his detention at the Franklin County Jail in Ottawa, Kansas (“FCJ”). Plaintiff’s claims relate to his conditions at the FJC and his state criminal proceedings. (Doc. 1, at 4.) Plaintiff indicates that the events giving rise to his claims occurred on various dates from February 6, 2024, to April 9, 2024. Id. Plaintiff lists his claims as follows: (1) My attorney failed to file my appeal. (2) The court carried out misconduct. (3) The jail administrator violated a clearly worded court order. (4) Three probation officers cooberated [sic] non-compliant evidence against me. (5) The jail administrator of the facility that I was transferred to didn’t provide an adequate law library. (6) The current Judge didn’t respond in an applicable fashion.
Id. Plaintiff alleges that the court in Franklin County, Kansas, along with Plaintiff’s public defender, violated Plaintiff’s Fourteenth Amendment right to due process by failing to provide him with an evidentiary hearing, disregarding his instructions to file an appeal, failing to provide substantial grounds for revocation, and placing him in a facility that did not provide a competent up-to-date law library. (Doc. 1–1, at 2.) Plaintiff alleges that he was unable to file a pro se motion to appeal, there was a failure to list the state’s witness on the affidavit of revocation, intermediate sanctions were not provided, and court orders stating that he was to serve his sentence at Franklin County were disregarded. Id. Plaintiff alleges that his request for additional testing for evidence at his February 7, 2024 revocation hearing were ignored and the hearing was held with unsubstantiated evidence and witnesses that were not listed on the affidavit to testify. Id. Plaintiff alleges that he was transferred to the Anderson County Detention Center where an inadequate law library prevented him from researching his case in order to file an appeal. Id. Plaintiff names as defendants: Brandon Jones, District Attorney; Tara Athmer, Assistant District Attorney; Joseph Falls, Assistant District Attorney/Public Defender; Tammy Alexander, Jail Administrator; Kevin Kimball, Judge; Kara Reynolds, Judge; Todd Rhodes, Probation Officer; Jaclyn Sinclair, Probation Officer; Dominic Haen, Probation Officer; Brandee McArthor, Chief Court Services Officer; Ginger Stackley, Notary; and Kevin McGuffin, Chief Court Services Officer. Plaintiff alleges that his injuries are “loss of liberty.” Id. at 5. For relief, Plaintiff seeks “employment repercussions” for defendants that are not members of the bar association, and a reprimand or disbarment for those that are members. Id. Plaintiff also seeks $100,000 in compensatory damages and $400,000 in punitive damages. Id. II. Statutory Screening of Prisoner Complaints Because Plaintiff proceeds in forma pauperis in this matter, the Court is required to “dismiss the case at any time if the court determines that—. . . (B) the action or appeal—(i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.” 28 U.S.C. § 1915(e)(2)(B). “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.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[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.” Twombly, 550 U.S. at 555 (citations omitted). 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.” Id. at 555, 570. The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007). 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.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted). The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. DISCUSSION 1. Heck Bar Plaintiff alleges that he was sentenced to 180 days of incarceration on February 7, 2024. To the extent Plaintiff challenges the validity of his sentence in his state criminal case, his federal claim must be presented in habeas corpus. “[A] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (emphasis added). When the legality of a confinement is challenged so that the remedy would be
release or a speedier release, the case must be filed as a habeas corpus proceeding rather than under 42 U.S.C. § 1983, and the plaintiff must comply with the exhaustion of state court remedies requirement. Heck v. Humphrey, 512 U.S. 477, 482 (1994); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (exhaustion of state court remedies is required by prisoner seeking habeas corpus relief); see 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of available state court remedies). “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see
Woodford v. Ngo, 548 U.S. 81, 92 (2006); Rose v. Lundy, 455 U.S. 509, 518–19 (1982); Therefore, any claim challenging his state sentence is not cognizable in a § 1983 action. Likewise, before Plaintiff may proceed in a federal civil action for monetary damages based upon an invalid conviction or sentence, he must show that his conviction or sentence has been overturned, reversed, or otherwise called into question. Heck v. Humphrey, 512 U.S. 477 (1994). 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.
Id. at 487. 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. Plaintiff has not alleged that the conviction or sentence has been invalidated. 2. Defendants A. Sovereign Immunity Plaintiff indicates in his Complaint that he is suing Judge Kimball and notary Ginger Stackley in their individual capacities. He is suing all the remaining Defendants in their official capacities. The State of Kansas and its agencies are absolutely immune from suits for money damages under the Eleventh Amendment. The Eleventh Amendment presents a jurisdictional bar to suits against a state and “arms of the state” unless the state waives its immunity. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). Therefore, in the absence of some consent, a suit in which an agent or department of the state is named as a defendant is “proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). It is well established that Congress did not abrogate the states’ sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 338–45 (1979); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). For § 1983 purposes, a state official is the state itself when sued in his or her official capacity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). A state officer sued in his or her official capacity also enjoys this protection. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017). “When a suit alleges a claim against a state official in his official capacity, the real party in interest in the case is the state, and the state may raise the defense of sovereign immunity
under the Eleventh Amendment.” Callahan v. Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (quotation omitted). The bar also applies when the entity is an arm or instrumentality of a state. Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). In determining whether an entity is an instrumentality or arm of the state for purposes of Eleventh Amendment immunity, the Tenth Circuit has established a two-part inquiry, requiring an examination of: (1) “the degree of autonomy given to the agency, as determined by the characterization of the agency by state law and the extent of guidance and control exercised by the state,” and (2) “the extent of financing the agency receives independent of the state treasury and its ability to provide for its own
financing.” Duke v. Grady Mun. Sch., 127 F.3d 972, 974 (10th Cir. 1997) (citations omitted). “The governmental entity is immune from suit if the money judgment sought is to be satisfied out of the state treasury.” Id. (citations omitted). Kansas state law clearly characterizes the district courts as arms of the state government—part of a unified judicial branch along with the Kansas Supreme Court and Kansas Court of Appeals. Wilkins v. Skiles, No. 02–3190, 2005 WL 627962, at *4 (D. Kan. March 4, 2005); see generally, KAN. CONST. art 3. The legislature defines “state agency,” for purposes of the state workers’ compensation fund, as “the state, or any department or agency of the state, but not including . . . the district court with regard to district court officers or employees whose total salary is payable by counties.” K.S.A. 44–575(a). The only court personnel who are not included in the judicial personnel pay system, and are instead paid by the county, are county auditors, coroners, court trustees and personnel in each trustee’s office, and personnel performing services in adult or juvenile detention or correctional facilities. K.S.A. 20–162(a), (b).
District court judges are state officials. Schroeder v. Kochanowski, 311 F. Supp. 2d 1241, 1256 (D. Kan. 2004), see also Sigg v. Dist. Court of Allen Cty., Kan., No. 11-2625-JTM, 2012 WL 941144, at *4 (D. Kan. March 20, 2012) (district court judge is a state official and official capacity claims against judge for money damages are barred). A county district attorney’s office, “to the extent that it is an entity that can be sued, is a branch or agency of the state under applicable law and, therefore, is also immune under the Eleventh Amendment.” Collins v. McClain, 207 F. Supp. 2d 1260, 1263 (D. Kan. 2002) (citations omitted); see also White v. Blackwell, 343 F. App’x 341, 342 (10th Cir. 2009) (damage claim against county prosecutor in her official capacity barred by Eleventh Amendment immunity); McCormick v. Bd.
of Cty. Comm’rs of Shawnee Cty., 24 P.3d 739, 746 (Kan. Ct. App. 2001) (“In Kansas, district attorneys are officers of the State.”). The official capacity claims against the state officials for monetary damages are barred by sovereign immunity. Furthermore, state officers acting in their official capacity are not considered “persons” against whom a claim for damages can be brought under § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). B. Personal Immunities 1. Judges Plaintiff names state court judges as defendants. Even if Plaintiff sues the judges in their individual capacities, the state court judges are entitled to personal immunity. “Personal immunities . . . are immunities derived from common law which attach to certain governmental officials in order that they not be inhibited from ‘proper performance of their duties.’” Russ v. Uppah, 972 F.2d 300, 302–03 (10th Cir. 1992) (citing Forrester v. White, 484 U.S. 219, 223, 225 (1988)).
Plaintiff’s claims against the state court judges should be dismissed on the basis of judicial immunity. 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. Stump, 435 U.S. at 356–57. Plaintiff alleges no facts whatsoever to suggest that the defendant judges acted outside of their judicial capacities.
2. Prosecutors Plaintiff names county prosecutors as defendants. Plaintiff’s claims against the county prosecutors 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 is directed to show cause why his claims against the county prosecutors should not be dismissed based on prosecutorial immunity. 3. Probation Officers “[P]robation officers are protected by absolute immunity if ‘they are performing a narrowly defined judicial, executive, or legislative function.’” Daniels v. USAO UT Dist., 2023 WL 4115986, at *2 (10th Cir. 2023) (unpublished) (quoting Tripati v. U.S.I.N.S., 784 F.2d 345, 347 (10th Cir. 1986) (citation omitted)). Although Plaintiff’s allegations are sparse, “they appear
to be related to activities ‘intimately associated with the judicial phase of the criminal process’ and are, therefore, protected by immunity.” Id. (citation omitted); see also Steward v. Chandler, 2024 WL 1282770, at *3 (D. N.M. 2024) (“[b]ecause of the close working relationship between the probation officer and the sentencing court, the probation officer may communicate ex parte with the district court . . . and is entitled to absolute immunity from suit in the performance of his or her judicially-related functions.”) (citing United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)); McDermott v. Smith, 2023 WL 3620739, at *2 (E.D. Okla. 2023) (finding that state probation officers are cloaked with absolute judicial immunity when performing judicially related functions, and stating that this is because “‘[p]robation officers are people with whom the
judges may properly confer ex parte in connection with decisions based on probation reports— the same kind of conference as might be done with an elbow law clerk.’”) (citations omitted). Plaintiff should show good cause why his claims against his probation officers should not be dismissed. 4. Court Services Officers Plaintiff does not mention the Chief Court Services Officers—Defendants Kevin McGuffin and Brandee McArthor—in the body of his Complaint. When the challenged activities are intimately associated with the judicial phase of the criminal process, they are entitled to absolute immunity. Tripati v. U.S.I.N.S., 784 F.2d 345, 348 (10th Cir. 1986) (finding that probation officers who assist in the decision whether to order pretrial release and in the selection of an appropriate sentence are an important part of the judicial process and entitled to immunity). When preparing a presentence report “it is evident . . . that the probation service is an arm of the court. It is not an investigative arm for the prosecution. A presentence report is prepared exclusively at the discretion of and for the benefit of the court.” Id. (citing United
States v. Dingle, 546 F.2d 1378, 1380–81 (10th Cir. 1976)). Plaintiff has not alleged that these Defendants were acting other than as an arm of the court. Plaintiff is directed to show cause why his claims against Defendants McGuffin and Stackley should not be dismissed. C. Public Defender Plaintiff has not shown that his state court defense attorney was 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 law even when the representation was inadequate. Briscoe v. LaHue, 460 U.S. 325, 330 n.6 (1983). Plaintiff’s claims against his defense attorney are subject to dismissal for failure to state a claim. D. Personal Participation Plaintiff fails to mention Defendants McGuffin and Arthor, Chief Court Services Officers, in the body of his Complaint. He also fails to mention Defendant Stackley, whom he designates as a notary. Plaintiff has failed to allege how these Defendants personally participated in the deprivation of his constitutional rights. An essential element of a civil rights claim against an individual is that person’s direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Henry
v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“But § 1983 imposes liability for a defendant’s own actions—personal participation in the specific constitutional violation complained of is essential.”) (citing Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”) (citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s direct personal responsibility for the claimed deprivation . . . must be established.”) (emphasis added) (citation omitted)). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional rights. 3. Court Access Plaintiff names FCJ jail administrator Tammy Alexander as a defendant and alleges that the jail administrator “violated a clearly worded court order.” (Doc. 1, at 4.) Plaintiff’s claim seems to be that he was supposed to serve his sentence at the FCJ, but was transferred to a county jail that did not have an adequate law library. He claims that the jail administrator “of the facility that [he] was transferred to didn’t provide an adequate law library.” Id. He claims that by the time he returned to the FCJ he did not have enough time to submit his appeal. It is well-established that a prison inmate has a constitutional right of access to the courts. However, it is equally well-settled that in order “[t]o present a viable claim for denial of access to courts, . . . an inmate must allege and prove prejudice arising from the defendants’ actions.”
Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518 U.S. 343, 349 (1996) (“The requirement that an inmate . . . show actual injury derives ultimately from the doctrine of standing.”). An inmate may satisfy the actual-injury requirement by demonstrating that the alleged acts or shortcomings of defendants “hindered his efforts to pursue” a non-frivolous legal claim. Lewis, 518 U.S. at 351-53; see also Burnett v. Jones, 437 F. App’x 736, 744 (10th Cir. 2011) (“To state a claim for violation of the constitutional right to access the courts, a prisoner ‘must demonstrate actual injury . . .—that is, that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of
confinement.’”) (quoting Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)). The Supreme Court plainly held in Lewis that “the injury requirement is not satisfied by just any type of frustrated legal claim.” Lewis, 518 at 354. Rather, the injury occurs only when prisoners are prevented from attacking “their sentences, directly or collaterally” or challenging “the conditions of their confinement.” Id. at 355. “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. (emphasis in original); see also Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995) (“[A]n inmate’s right of access does not require the state to supply legal assistance beyond the preparation of initial pleadings in a civil rights action regarding current confinement or a petition for a writ of habeas corpus.”) (citations omitted). The right to access the courts does not guarantee inmates the right to a law library or to legal assistance, but merely to “the means for ensuring ‘a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.’” Id. 350–51
(quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)). The right to access the courts is “only [the right] to present . . . grievances to the courts,” and does not require prison administrators to supply resources guaranteeing inmates’ ability “to litigate effectively once in court” or to “conduct generalized research.” Id. at 354, 360. The Tenth Circuit has found that whether or not a party is represented by counsel or proceeding pro se “is important because a court-access claim is necessarily intertwined with the assistance vel non of counsel.” Carr v. Zwally, 760 F. App’x 550, 556 (10th Cir. 2019) (unpublished) (citing United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999) (“It is well established that providing legal counsel is a constitutionally acceptable alternative to a prisoner’s
demand to access a law library.”); accord Lewis v. Clark, 577 F. App’x 786, 796–97 (10th Cir. 2014) (unpublished) (affirming dismissal of court-access claim because prisoner was represented by counsel in underlying criminal case)). Furthermore, the Tenth Circuit has recognized that “because there is no constitutional right to ‘a hybrid form of representation,’” . . . “when defendants have the assistance of counsel, courts need not consider any filings made pro se.” United States v. Sandoval-De Loa, 283 F. App’x 621, 625 (10th Cir. 2008) (unpublished) (citing United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995) and United States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976) (“[P]ermission for [hybrid representation] [is] recognized as being discretionary with the trial court.”); see also United States v. Castellon, 218 F. App’x 775, 780 n.4 (10th Cir. 2007) (unpublished) (“[W]here a defendant is represented by counsel, we do not accept pro se filings or allegations.”)). Plaintiff should show good cause why his court access claim should not be dismissed for failure to state a claim. He is also granted the opportunity to file an amended complaint to provide additional factual allegations to support such a claim.
4. Relief Requested Plaintiff seeks employment repercussion, reprimands, or disbarment, as relief. (Doc. 1, at 5.) To the extent Plaintiff seeks this type of relief, the Court is without authority to grant such relief. See Nicholas v. Hunter, 228 F. App’x 139, 141 (3rd Cir. 2007) ( “The remaining relief requested is not available as the District Court lacks authority to order a federal investigation and prosecution of the defendants or the termination of their employment.”); Goulette v. Warren, No. 3:06CV235-1-MU, 2006 WL 1582386, at n.1 (W.D. N.C. June 1, 2006) (“The Court notes that even if Plaintiff’s claims prevailed in this case, this Court would not, based upon this law suit, have the authority to order the termination of the Defendant’s employment or to grant Plaintiff
an immediate, early release from jail.”); Dockery v. Ferry, No. 08-277, 2008 WL 1995061, at *2 (W.D. Pa. May 7, 2008) (finding that the court cannot issue an order which would direct a local government to terminate a police officer’s employment) (citing In re Jones, 28 F. App’x 133, 134 (3rd Cir. 2002) (“Jones is not entitled to relief . . . [S]he asks this Court to prohibit the State of Delaware from filing charges against her. The federal courts, however, have no general power in mandamus action to compel action, or in this case inaction, by state officials.”)); Martin v. LeBlanc, No. 14-2743, 2014 WL 6674289, at n.1 (W.D. La. Nov. 24, 2014) (finding that where plaintiff requested an investigation, the termination of the defendants’ employment and the closure of the prison, “[s]uch relief is not available in this action”); Merrida v. California Dep’t of Corr., No. 1:06-CV-00502 OWW LJO P, 2006 WL 2926740, at n.1 (E.D. Cal. Oct. 11, 2006) (finding that where plaintiff prays for the termination of defendant’s employment, “the court cannot award this form of relief to plaintiff) (citing 18 U.S.C. § 3626(a)(1)(A)). Plaintiff also seeks compensatory damages. Section 1997e(e) provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).” 42 U.S.C. § 1997e(e). To the extent Plaintiff seeks compensation for injuries suffered while in custody, he has failed to show a physical injury as required by the statute. Plaintiffs seeks punitive damages, which “are available only for conduct which is ‘shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’” Searles, 251 F.3d at 879 (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiff presents no plausible basis for a claim of punitive damages because he alleges no facts whatsoever establishing that any defendant acted with a sufficiently
culpable state of mind. Plaintiff’s request for punitive damages is subject to dismissal. IV. Response and/or Amended Complaint Required Plaintiff is required to show good cause why his Complaint should not be dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper amended complaint upon court-approved forms that cures all the deficiencies discussed herein.1
1 To add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original complaint, and instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to be retained from the original complaint. Plaintiff must write the number of this case (24-3219-JWL) at the top of the first page of his amended complaint and he must name every defendant in the caption of the amended complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended complaint, Plaintiff is given time to file a complete and proper amended complaint in which he (1) raises only properly joined claims and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation and show a cause of action in federal court; and (3) alleges sufficient facts to show personal participation by each named defendant. If Plaintiff does not file an amended complaint within the prescribed time that cures all
the deficiencies discussed herein, this matter will be decided based upon the current deficient Complaint and may be dismissed without further notice for failure to state a claim. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for Leave to Proceed in Forma Pauperis (Doc. 3) is granted. IT IS FURTHER ORDERED that Plaintiff is granted until January 6, 2025, in which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. IT IS FURTHER ORDERED that Plaintiff is also granted until January 6, 2025, in which to file a complete and proper amended complaint to cure all the deficiencies discussed
herein. The Clerk is directed to send § 1983 forms and instructions to Plaintiff. IT IS SO ORDERED. Dated December 5, 2024, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
where he must allege facts describing the unconstitutional acts taken by each defendant including dates, locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional violation.