Buchheit v. Green
| Decision Date | 14 May 2012 |
| Docket Number | No. 12-4038-CM-KGS,12-4038-CM-KGS |
| Parties | CHARLES B. BUCHHEIT, Plaintiff, v. CAROL G. GREEN, Clerk of the Appellate Courts State of Kansas, Defendant. |
| Court | U.S. District Court — District of Kansas |
This case comes before the court on the defendant's Motion to Review Magistrate's Order and Motion for Stay (Doc. 8), and plaintiff's Motion to Strike [Defendant's Motion] as well as Sanction Defendant's Counsel [Stephen Phillips] (Doc. 10). For the reasons set forth below, the court denies the motions. In this order, this court also exercises its authority under 28 U.S.C. § 1915(e)(2) to screen the complaint. Because the court determines that it lacks subject matter jurisdiction, the court dismisses plaintiff's complaint without prejudice.
On April 18, 2012, United States Magistrate Judge K. Gary Sebelius issued an order granting plaintiff's motion for leave to proceed in forma pauperis. (Doc. 7.) Defendant moves for review of this order on the basis that "[t]he magistrate judge did not screen the case for merit as is required by 28 U.S.C. § 1915(e)." (Doc. 9 at 1.) Defendant also requests that this court dismiss plaintiff's petition under § 1915(e), and requests that all other proceedings in this matter be stayed pending resolution of the motion.
Specifically, defendant argues that the magistrate judge's order granting in forma pauperis status "is contrary to law because [the magistrate] failed to screen the case under 28 U.S.C. § 1915(e)(2)(B), screening which is mandatory." (Doc. 9 at 3.) Defendant acknowledges that a magistrate judge does not have authority to actually dismiss a case, but suggests that the magistrate judge has a mandatory duty to issue a report to the district court judge recommending if the case should be dismissed. (Doc. 9 at 5.) Defendant suggests that failing to perform the screening prior to service of summons eviscerates the purpose of § 1915(e)(2).
Although the motion makes no mention of it, defendant's counsel filed a strikingly similar motion in a different case in this district, which the court summarily denied.1 See Ebrahim Adkins v. Kan. Comm'n on Judicial Qualifications, No. 11-4109-SAC, Memorandum and Order filed Oct. 20, 2011 (Doc. 15). Likewise, this court denies the defendant's instant request for review of the magistrate's order. As stated by Judge Crow in Adkins:
The defendant cites no authority that requires a court to consider § 1915(e)(2) as factors on a non-prisoner litigant's ifp request. In sum, the defendant's motion is devoid of legal merit in arguing that the magistrate judge acted contrary to the law in granting ifp without simultaneously making a § 1915(e)(2) determination.
The instant motion also offers no legal authority for the proposition that a magistrate judge, in ruling on an in forma pauperis request, "is required" to screen a case for merit pursuant to § 1915(e)(2). Unlike § 1915A, the language of § 1915(e)(2) does not impose a duty to screen or review "before service of summons." Instead, as Judge Crow noted, "§ 1915(e)(2)(i) and (ii) require a court to dismiss a case filed by an ifp litigant at any time 'the court determines that . . . the action or appeal . . . is frivolous [or] fails to state a claim on which relief may be granted.'" (citing Merryfield v.Jordan, 584 F.3d 923, 926 n.3 (10th Cir. 2009)). For non-prisoner cases, like this one, the duty to dismiss arises with the determination that statutory grounds exist for dismissal, but the only time restriction established by § 1915(e)(2) is that dismissal must occur sometime—indeed "at any time"—after in forma pauperis status has been granted. The court is uncertain why defendant's counsel would file a motion based on a legal argument previously determined to be meritless. Regardless, defendant's motion to review is denied.
Because the issue is now before it, the court will address whether plaintiff's action survives a sua sponte dismissal pursuant to § 1915(e)(2).2
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court may dismiss sua sponte an in forma pauperis action if it: is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see Lewis v. Ctr. Mkt., 378 F. App'x 780, 785 (10th Cir. 2010) (). Dismissal is warranted "if the plaintiff cannot make a rational argument on the law and facts," Whitney v. New Mexico, 113 F.3d 1170, 1172 (10th Cir. 1997) (citations and quotations omitted), or if it is "patently obvious" that the plaintiff cannot prevail on the facts alleged and that amendment would be futile, id. at 1173 (citations and quotations omitted).
The court may find that a claim is frivolous when "the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). But the court may not dismiss a complaint merely because the allegations are unlikely or improbable. Id. Generally, a complaint is legally frivolous if it rests on an "indisputably meritless legal theory" such as an "infringement of a legal interest which clearly does not exist." Neitzke v. Williams, 490 U.S. 319, 327 (1989).
The court is mindful of the fact that plaintiff is proceeding pro se. Because of plaintiff's status, the court affords him some leniency in construing his complaint. Asselin v. Shawnee Mission Med. Ctr., Inc., 894 F. Supp. 1479, 1484 (D. Kan. 1995) (citation omitted). The court does not, however, assume the role of advocate for plaintiff simply because he is proceeding pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court will not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citations omitted). Nor will the court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney, 113 F.3d at 1173-74 (citation omitted).
The court is also mindful that, as courts of limited jurisdiction, federal courts may exercise jurisdiction only when authorized. Strohm v. United States, No. 06-4139-SAC, 2007 WL 3120704, at *1 (D. Kan. Oct. 24, 2007) (citing Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir. 1994)). A court lacking jurisdiction must dismiss the case regardless of the stage of the proceeding when it becomes apparent that jurisdiction is lacking. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). There is a presumption against federal jurisdiction, Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999), and the party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002).Mere conclusory allegations of jurisdiction are not enough. United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).
Plaintiff's complaint is far from clear, and it contains a number of far-fetched and conclusory allegations.3 But he claims to seek "prospective injunctive relief" to restrain defendant's unconstitutional conduct. A careful review suggests that the complained-of conduct is defendant's denial of his in forma pauperis motion and related docketing statement in a purported appeal from the dismissal of a Child in Need of Care ("CINC") action, Case No. 10JC000134, out of Shawnee County District Court.4 Plaintiff suggests that he was intentionally denied in forma pauperis status to prevent him from "exposing . . . corruption and concealment" of "civil rights criminal statute violations [sic] by State of Kansas Judicial branch officials." (Doc. 1 at 5.) He claims the denial was unconstitutional in violation of, inter alia, § 1983, but he specifically asserts he is not bringing a § 1983 claim. (See Doc. 1 at 5-6, 7.) He asserts that defendant denied plaintiff's right to due process and equal protection by "not docketing or assigning case numbers to appeals and original actionssubmitted to her office by the Plaintiff." (Doc. 1 at 8.) He asks the court to require defendant to enforce the in forma pauperis rule, and to allow plaintiff to proceed with his state court appeal. Specifically, he prays that the court "restrain the Defendant from violating his Fourteenth Amendment . . . rights and allow the Plaintiff to file his Appeal in a timely manner, to include the original Documents, as originally intended, by the Plaintiff." (Id.)
Plaintiff specifically claims to seek only "prospective injunctive relief" and not damages. Although the Eleventh Amendment bars suits for damages against state defendants acting in their official capacities, the United States Supreme Court carved out an exception to state sovereign immunity for suits seeking prospective injunctive relief in Ex Parte Young, 209 U.S. 123, 159-60 (1908). See, e.g., Hunter v. State, No. 08-3075-SAC, 2008 WL 2397559, at *1-2 (D. Kan. June 10, 2008). However, whether a request for injunctive relief is prospective requires a "straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md., Inc. v. Publ. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)). "The [Ex parte Young] exception has been 'tailored to conform as precisely as possible to those specific situations in which it is necessary to permit the federal courts to vindicate federal rights.'" Idaho, 521 U.S. at 277 (quoting...
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...may dismiss an action without service of process through the screening process of § 1915(e)). 2. See Buchheit v. Green, No. 12-4038-CM-KGS, 2012 WL 1673917, at *1 (D. Kan. May 14, 2012). 3. Neitzke v. Williams, 490 U.S. 319, 324 (1989). 4. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007......