IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
PEDRO DANIEL VASQUEZ,
Plaintiff,
v. CASE NO. 23-3225-JWL
KEVIN BASCUE, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is in custody at the Finney County Jail in Garden City, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. On October 12, 2023, the Court entered a Memorandum and Order to Show Cause (Doc. 4) (“MOSC”) granting Plaintiff until November 13, 2023, in which to show good cause why his Complaint should not be dismissed for the reasons set forth in the MOSC. Plaintiff has failed to respond by the Court’s deadline. Plaintiff’s claims are set forth in detail in the MOSC. In summary, Plaintiff’s claims relate to his arrest and criminal charges in state court. He asserts claims of wrongful incarceration, malicious prosecution, and illegal search and seizure. Plaintiff alleges that his attorney presented evidence showing the eyewitness testimony was false and Plaintiff was “cleared of all charges.” Plaintiff names as defendants: Kevin Bascue, Finney County Sheriff; Andrew Cavalier, Garden City Police Officer; the Garden City Police Department; Tomas Ellis; and Tyler Pettigrew. Plaintiff seeks money damages. Plaintiff names the county prosecutors as defendants. The Court found in the MOSC that 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. The Court directed Plaintiff to show cause why his claims against the county prosecutors—Tomas Ellis and Tyler Pettigrew—should not be
dismissed based on prosecutorial immunity. Plaintiff also names the Garden City Police Department (“GCPD”) as a defendant. The Court found that Plaintiff’s claims against the GCPD are subject to dismissal, 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)). This Court has held that municipal police departments are subunits of city government and not legal entities subject to suit. Roberts v. Unknown Wichita Police Officers, 2019 WL 1790050, at *2 (D. Kan. April 24, 2019) (citing Schwab v. Kansas, 2017 WL 2831508,
at *13 (D. Kan. June 30, 2017) (dismissing Riley County Police Department); Neighbors v. Lawrence Police Dep’t, 2016 WL 3685355, at *6 (D. Kan. July 12, 2016); Ward v. Lenexa, Kansas Police Dep’t, 2014 WL 1775612, at *4 (D. Kan. May 5, 2014)); see also See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) (“City of Denver Police Department” not “separate suable entity”). Plaintiff names Sheriff Bascue as a defendant, but does not mention him in the body of his Complaint. The Court found that Plaintiff failed to allege how the Sheriff 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. The Court directed Plaintiff to show good cause why his claims against Sheriff Bascue should not be dismissed. The Court found in the MOSC that 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 alleges that his charges in Case No. 2021-CR-199 were dropped and he was “cleared of all charges.” The case was filed on June 2, 2021, with an offense date of May 28, 2021. See State v. Vasquez, Case No. 2021-CR-199 (District Court of Finney County, Kansas). Although Plaintiff alleges that the charges in the case were “dropped,” the online docket shows that a plea hearing was held on December 22, 2021, at which the original charge was dismissed and Plaintiff entered a plea of nolo contendere to the amended charge for criminal trespass. Id. Plaintiff was sentenced on that date to 180 days of confinement for the criminal trespass charge. Id. This situation is distinguishable from a case where the charges were dismissed and plaintiff entered a plea agreement on unrelated charges. Cf. Butler v. Compton, 482 F.3d 1277
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
PEDRO DANIEL VASQUEZ,
Plaintiff,
v. CASE NO. 23-3225-JWL
KEVIN BASCUE, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is in custody at the Finney County Jail in Garden City, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. On October 12, 2023, the Court entered a Memorandum and Order to Show Cause (Doc. 4) (“MOSC”) granting Plaintiff until November 13, 2023, in which to show good cause why his Complaint should not be dismissed for the reasons set forth in the MOSC. Plaintiff has failed to respond by the Court’s deadline. Plaintiff’s claims are set forth in detail in the MOSC. In summary, Plaintiff’s claims relate to his arrest and criminal charges in state court. He asserts claims of wrongful incarceration, malicious prosecution, and illegal search and seizure. Plaintiff alleges that his attorney presented evidence showing the eyewitness testimony was false and Plaintiff was “cleared of all charges.” Plaintiff names as defendants: Kevin Bascue, Finney County Sheriff; Andrew Cavalier, Garden City Police Officer; the Garden City Police Department; Tomas Ellis; and Tyler Pettigrew. Plaintiff seeks money damages. Plaintiff names the county prosecutors as defendants. The Court found in the MOSC that 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. The Court directed Plaintiff to show cause why his claims against the county prosecutors—Tomas Ellis and Tyler Pettigrew—should not be
dismissed based on prosecutorial immunity. Plaintiff also names the Garden City Police Department (“GCPD”) as a defendant. The Court found that Plaintiff’s claims against the GCPD are subject to dismissal, 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)). This Court has held that municipal police departments are subunits of city government and not legal entities subject to suit. Roberts v. Unknown Wichita Police Officers, 2019 WL 1790050, at *2 (D. Kan. April 24, 2019) (citing Schwab v. Kansas, 2017 WL 2831508,
at *13 (D. Kan. June 30, 2017) (dismissing Riley County Police Department); Neighbors v. Lawrence Police Dep’t, 2016 WL 3685355, at *6 (D. Kan. July 12, 2016); Ward v. Lenexa, Kansas Police Dep’t, 2014 WL 1775612, at *4 (D. Kan. May 5, 2014)); see also See Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985) (“City of Denver Police Department” not “separate suable entity”). Plaintiff names Sheriff Bascue as a defendant, but does not mention him in the body of his Complaint. The Court found that Plaintiff failed to allege how the Sheriff 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. The Court directed Plaintiff to show good cause why his claims against Sheriff Bascue should not be dismissed. The Court found in the MOSC that 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 alleges that his charges in Case No. 2021-CR-199 were dropped and he was “cleared of all charges.” The case was filed on June 2, 2021, with an offense date of May 28, 2021. See State v. Vasquez, Case No. 2021-CR-199 (District Court of Finney County, Kansas). Although Plaintiff alleges that the charges in the case were “dropped,” the online docket shows that a plea hearing was held on December 22, 2021, at which the original charge was dismissed and Plaintiff entered a plea of nolo contendere to the amended charge for criminal trespass. Id. Plaintiff was sentenced on that date to 180 days of confinement for the criminal trespass charge. Id. This situation is distinguishable from a case where the charges were dismissed and plaintiff entered a plea agreement on unrelated charges. Cf. Butler v. Compton, 482 F.3d 1277, 1281 (10th Cir. 2007) (“Mr. Butler’s conviction on unrelated charges may not form the basis for the application of Heck where there is no challenge to that conviction in Mr. Butler’s § 1983 action.”). Plaintiff in this case is seeking damages for the time he was detained and incarcerated. However, Plaintiff was detained based on the incident for which he was ultimately convicted. See Wilkins v. City of Tempe, No. CV 09-00752-PHX-MHM, 2010 WL 94116, at *3 (D. Ariz. Jan. 6, 2010) (distinguishing Butler and finding that “[t]he fact that the crimes which Plaintiff ultimately plead guilty to were not the ones with which he was originally charged is irrelevant; his conviction, unlike the one in Butler, arises out of the same incident that led to the original charges”). If this Court were to find that Plaintiff was entitled to damages for being detained and incarcerated, the invalidity of his criminal convictions would be necessarily implicated. See Wingo v. Mullins, No. 09-CV-445-GKF-TLW, 2009 WL 4404278, at *2 (N.D. Okla. Nov. 25, 2009) (“To the extent Plaintiff claims that the conduct of Defendants . . . destroyed his business,
the Court concludes that any damage to Plaintiff’s business which arose prior to his convictions is ‘inextricably intertwined’ with the allegations resulting in his conviction.”) (citation omitted). “The Court finds Plaintiff has failed to demonstrate that he suffered an actual compensable injury unrelated to his conviction and imprisonment which would survive the holding of Heck.” Id. The Court ordered Plaintiff to show cause why this matter should not be dismissed as barred by Heck. The Court ordered Plaintiff to show good cause why his Complaint should not be dismissed for the reasons stated in the MOSC. The MOSC provides that “[f]ailure to respond by the deadline may result in dismissal of this matter without further notice.” (Doc. 4, at 8.)
Plaintiff has failed to respond by the Court’s deadline and has failed to show good cause why this matter should not be dismissed for the reasons set forth in the MOSC. IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed as barred by Heck. IT IS SO ORDERED. Dated November 20, 2023, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE