Heath v. Kansas
| Decision Date | 14 October 2011 |
| Docket Number | CASE NO. 11-3142-SAC |
| Parties | GLENN A. HEATH, Plaintiff, v. STATE OF KANSAS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This matter was filed as a civil rights complaint pursuant to 42 U.S.C. § 1983 by an inmate of the Lansing Correctional Facility, Lansing, Kansas. The named defendants are the State of Kansas, the Kansas Prisoner Review Board, and the following persons described as members of the Kansas Parole Board (KPB): Mike O'Neil,1 Patricia Biggs, and Robert Sanders. Mr. Heath challenges the KPB's decision to deny and defer his application for parole.
Plaintiff has filed an Amended Complaint, which he may do so as of right. However, statements in his Amended Complaint indicate his lack of understanding that an amended complaint completely supercedes the original complaint. Thus, he may not simply refer back to the original complaint, and the two are not automatically merged. Instead, all defendants he sues, all claims and arguments he asserts, and all factual allegations he makes must be included in the Amended Complaint itself. The court could simply ignore the original complaint since it has been superceded. Instead, plaintiff is given the opportunity to file a "Second Amended Complaint" thatcontains all defendants, claims, and allegations that plaintiff intends to have considered in this case.
However, before filing a Second Amended Complaint, Mr. Heath must consider that his allegations appear to be in the nature of habeas corpus claims. Unless he can allege sufficient facts in a Second Amended Complaint to present a plausible claim for relief under 42 U.S.C. § 1983, this action will be construed by the court as one challenging the execution of his sentence under 28 U.S.C. § 2241.
INITIAL PARTIAL FILING FEE ASSESSED
Mr. Heath has neither paid the appropriate filing fee nor submitted a proper and complete motion for leave to proceed in forma pauperis (IFP). He merely requests leave to proceed IFP at the end of his complaint. He has submitted the requisite inmate account statement (Doc. 2). The court tentatively considers his request for IFP status based upon the information presently before it. However, plaintiff is required to submit a completed IFP motion upon court provided forms, which call for a list of his assets and other information as well as his affidavit.
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed IFP does not relieve him of the obligation to pay the filing fee for a civil complaint.2 Instead, it merely entitles him to proceed without prepayment of the full fee, and to pay that fee over time through payments automatically deducted from his inmate trust fund account as authorized by 28 U.S.C. §1915(b)(2).3 Furthermore, § 1915(b)(1), requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of a civil action. Having examined the records of plaintiff's account, the court finds the average monthly deposit to plaintiff's account over the relevant period is $72.79, and the average monthly balance is $48.21. The court therefore will be required to assess an initial partial filing fee of $14.50, twenty percent of the average monthly deposit, rounded to the lower half dollar if this matter continues as a civil rights action. Plaintiff must submit this initial partial filing fee at the same time he submits his Second Amended Complaint for filing.4 His failure to submit the initial fee in the time allotted will result in dismissal of this action without further notice.
COMPLAINT NOT ON FORMS
Local court rules require that both a civil complaint and a habeas corpus petition be submitted upon court approved forms. See D. Kan. Rule 9. 1(a)(Petitions for writs of habeas corpus . . . and civil rights complaints by prisoners . . . shall be on forms . . . ."). Mr. Heath is required in this action to either submit a complete Second Amended Complaint or a § 2241 petition, and whichever he submits must be upon court provided forms. If he failsto comply with this Order by filing a Second Amended Complaint or a § 2241 petition and a fully completed IFP motion on forms, this action may be dismissed without prejudice and without further notice.
FACTUAL ALLEGATIONS
Mr. Heath has alleged the following factual background for his complaint. He was convicted in 1996 of felony murder and child abuse, and was sentenced to consecutive terms of life imprisonment and 68 months. In 1998, the Kansas Supreme Court affirmed Mr. Heath's conviction for first-degree murder but reversed his conviction for abuse of a child and vacated his sentence for that offense, holding it was multiplicious.
In October 2010 petitioner became eligible for parole pursuant to Kan.Stat.Ann. (hereinafter KSA) § 22-3717. In April 2011 the KPB denied his application for parole. Plaintiff attaches to his complaint a copy of the KPB's Notice of Action (NOA) dated April 4, 2011. This NOA provided in pertinent part:
After considering all statutory factors, the decision of the Kansas Parole Board is: pass to October 2015. Pass reasons: serious nature/circumstances of crime; violent nature of crime. objections. Extended pass reasons: Inmate has been sentenced for a class A or B felony, or an off grid felony, and the Board makes a special finding that a subsequent parole hearing should be deferred for five (5) years, because it is not reasonable to expect that parole would be granted at a hearing if held before then for the following reasons: the amount of time served is insufficient based on the severity of the crime and will devalue the victim; the inmate's crime resulted in multiple victims and caused lasting impact on those victims; the inmate has not demonstrated behavioral insights necessary to decrease his risk to re-offend; the inmate's conduct during the commission of the crime manifested in excessive brutality of the victim; the victim was particularly vulnerable due to his age and relationship to the inmate.
Complaint/Memorandum (Doc. 1), Attach. 2. Plaintiff also attaches his resume, post-release objectives, and letters of recommendation, which he presumably presented to the KPB. He alleges that his institutional record was exemplary, that he earned positive staff comments, and that his "LSIR score" was 10.
SUMMARY OF CLAIMS
Plaintiff challenges the decision on his parole application on a variety of theories. In his original complaint, he generally claims that defendants' denial of parole was an abuse of the parole process. His more specific claims are that defendants (1) denied his "reasonable expectation of a liberty interest in release on parole"; (2) "breached the contractual liberty of KSA § 75-5210a;" (3) "maliciously prosecuted (him) for a charge reversed and vacated," which has resulted in his false imprisonment; (4) violated his right to privacy, placed him "in a false light before the public," and acted in excess of their authority by relying upon many "inaccuracies and untruths;" (5) violated the Fifth Amendment "by creating a state agency that functions as a hybrid" court; and (6) denied him equal protection of the law. In this complaint, plaintiff seeks compensatory and punitive damages, a declaratory judgment that the acts and omissions of the defendants have violated his federal constitutional rights, and a preliminary and permanent injunction.
In his Amended Complaint, plaintiff claims that (7) he contracted with a member of the KPB, and the KPB breached its fiduciary duty. He also claims that (8) the KPB denied due process by relying upon "secretive" objections to his parole; (9) the KPBselectively enforced KSA § 22-3717; (10) the 1998 amendment to § 22-3717 either created a liberty interest or was a "Bill of Pains and Penalties;" (11) Kansas statutes created a liberty interest in rehabilitation and mandated his prompt return to the community and entitlement to parole; (12) his rights to liberty and rehabilitation were denied; (13) the KPB acted with a malicious intent to injure him; and (14) he was re-prosecuted and punished without trial. He seeks the same types of relief in his Amended Complaint, but requests nominal damages as well.
REQUEST FOR PRELIMINARY INJUNCTION
In his original complaint, plaintiff requests a preliminary injunction. However, he does not even specify what action he is asking the court to enjoin. In any event, a party seeking a preliminary injunction "must demonstrate four factors:" (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Schrier v. University of Co., 427 F.3d 1253, 1258 (10th Cir. 2005); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009)(citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The Tenth Circuit has made it clear that "because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)(quoting Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10thCir. 2003))(internal quotation marks omitted).
Mr. Heath alleges no facts and makes no arguments whatsoever that would support a request for a preliminary injunction. This request is therefore denied due to plaintiff's failure to satisfy his burden of establishing those factors which are prerequisites to the granting of preliminary injunctive relief.
REQUEST FOR CLASS ACTION ORDER
In his original complaint, plaintiff requests a "class action order" citing Rule 23 of the Federal Rules of Civil Procedure. In support of...
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