Heath v. Kansas, CASE NO. 11-3142-SAC
| Decision Date | 28 December 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 pro se as a civil rights action pursuant to 42 U.S.C. § 1983 by a Kansas inmate. It is before the court for screening of plaintiff's Second Amended Complaint (Doc. 7) and his motions to proceed without prepayment of fees (Docs. 2 & 6). The court finds that plaintiff's claims are essentially habeas in nature and that he has not shown exhaustion of state remedies. The court also finds that, to the extent plaintiff may be held to have raised any claims cognizable under § 1983, his allegations fail to state a plausible federal constitutional violation. Accordingly, this action is dismissed without prejudice.
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES IS GRANTED
Plaintiff has paid the initial partial filing fee assessed in this case. As plaintiff was already informed, pursuant to 28 U.S.C. § 1915(b)(1), he remains obligated to pay the remainder of the $350.00 district court filing fee. Being granted leave entitles him to pay the filing fee over time through payments automatically deducted from his inmate trust fund account as authorized by 28U.S.C. § 1915(b)(2). Accordingly, plaintiff's motions to proceed without prepayment of fees (Docs. 2 & 6) are granted, and he is assessed the remainder of the filing fee.
SCREENING OF SECOND AMENDED COMPLAINT
In its prior screening order, the court discussed the myriad claims raised in plaintiff's original and First Amended Complaints and set forth the reasons they failed to state a claim under § 1983.1 Plaintiff was given the opportunity to file a Second Amended Complaint that cured these deficiencies. As Mr. Heath was advised, his Second Amended Complaint completely supercedes all previously-filed complaints. Accordingly, his prior complaints are of no further effect and are no longer considered herein.
Because Mr. Heath is a prisoner, the court is required by statute to screen his Second Amended Complaint and to dismiss this complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant entitled to immunity. 28 U.S.C. § 1915A(a) and (b). A pro se complaint is to be liberally construed and held to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). All well-pleaded allegations in the complaint are accepted as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). Nevertheless, the complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." BellAtlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation omitted). To avoid dismissal, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id.
FACT ALLEGATIONS AND CLAIMS
Plaintiff's Second Amended Complaint is again prolix with very few factual allegations.2 Plaintiff alleges that he was convicted of felony murder and sentenced to 15 years to life. He also alleges that he was seen by the Kansas Parole Board (KPB) in 2010 and denied parole for an extended time based upon the "serious nature/circumstances" of his offense. He repeatedly alleges that heis no public threat.
Plaintiff does not present each of his claims as a separate count followed only by those supporting facts and arguments relevant to that claim. Instead, he includes a couple arguments or claims in the section for naming defendants, a few more in the background section, some in the section for requesting relief, and several in a lengthy Memorandum attached to his complaint. In his Memorandum, he includes at least 21 different headings, yet never specifies more than the three counts in his form complaint. Many of his strewn-about arguments are conclusory and repetitive. Having carefully and liberally parsed plaintiff's Second Amended Complaint and attachments, the court finds that Mr. Heath raises the following main claims in his Second Amended Complaint: (1) he has a protected liberty interest in parole under state statutes and the Privileges or Immunities Clause of the 14th Amendment; (2) the reasons provided by the KPB in its Notice of Action (NOA) for denying plaintiff's parole application are too conclusory to provide sufficient notice and therefore violate federal due process; (3) the KPB violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny in that it enhanced his sentence based upon the same aggravating facts as were used by the Kansas Legislature to set the punishment for his crime; and (4) the Kansas parole statute is unconstitutional because it violates the rule of Apprendi in that it authorizes the KPB to make findings of fact beyond those found by the jury and use them to increase an inmate's punishment.
PLAINTIFF'S CLAIMS ARE HABEAS IN NATURE
Plaintiff was notified before filing his Second AmendedComplaint that "his allegations appear to be in the nature of habeas corpus claims" and "[u]nless he can allege sufficient facts in a Second Amended Complaint to present a plausible claim for relief under . . . § 1983, this action will be construed . . . as one challenging the execution of his sentence under 28 U.S.C. § 2241." He does not acquiesce in treatment of this action as a § 2241 petition. Instead, he has filed a separate § 2241 petition challenging the denial of his parole on some similar grounds, which is currently pending. See Heath v. McKune, No. 11-3194-SAC. In addition, he filed his Second Amended Complaint herein, which does little if anything to cure any deficiencies, but merely reargues some of his prior claims as well as raises a completely new main claim. He does couch his claims in more general terms and no longer emphasizes his exemplary conduct in prison.
As was fully explained in the screening order, when a state prisoner "seeks a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Reed v. McKune, 298 F.3d 946, 953 (10th Cir. 2002)(citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). "This requirement is applicable to a challenge to a constitutional defect in an individual parole hearing where the remedy lies in providing a new parole hearing." Id.; Hererra v. Harkins, 949 F.2d 1096, 1097 (10th Cir. 1991)(Where a prisoner challenges "a constitutional defect in an individual parole hearing, [and] where the remedy lies in providing a new parole hearing, [the] prisoner must file a habeas petition.").
In his Second Amended Complaint, Mr. Heath again claims constitutional defects in his individual parole proceedings andspecifically requests an immediate, new parole hearing free of those defects. His main claims now rest on the premise that he was constitutionally entitled to release on parole at his parole eligibility date. Plaintiff's general assertions that the parole procedures now set forth in K.S.A. § 22-3717(g) and applied by the KPB are unconstitutional do not extinguish the habeas nature of his claims. He has added a terse request for an order requiring the KPB to comply with Federal Due Process and the Sixth Amendment principles announced in Apprendi and its progeny "in all future parole hearings for all." The court is not convinced, however, by this general request that this action properly proceeds under § 1983.
The court finds that Mr. Heath's claims are habeas in nature and therefore must be raised in a § 2241 habeas petition. The court further finds that plaintiff has failed to provide sufficient, additional facts or authority showing that his challenges to the KPB's denial of parole are properly litigated in this § 1983 action.3
PLAINTIFF FAILS TO DEMONSTRATE EXHAUSTION
Were the court to go ahead and construe this action as a § 2241 petition, it would be dismissed for failure to show exhaustion. Mr. Heath was clearly advised that before raising habeas corpus claims in federal court, he must have exhausted all available state remedies. 28 U.S.C. § 2254; Johnson, 419 Fed.Appx. at 869-70 (citing see Coleman v. Thompson, 501 U.S. 722, 730-31 (1991)); Ellibee, 374 Fed.Appx. at 793 ()(citing Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)); Jacobs v. Cushinberry, 44 Fed.Appx. 889, 890-91 (10th Cir. 2002)(unpublished). He was directed to show that he had fully exhausted both administrative and judicial remedies on all his challenges to the parole decision in his case. He was warned that if he failed to show exhaustion within the time allotted, this action could be dismissed.
Mr. Heath's allegation that he wrote a letter to the KPB requesting a new hearing does not demonstrate that he fully and properly exhausted all available administrative remedies. He does not allege facts indicating that he timely followed the requisite steps to administratively appeal the decision of the KPB and that he raised all claims he now presents herein in that appeal.
Nor has plaintiff alleged facts indicating that he filed a state habeas petition in the appropriate state district court raising all claims presented herein that was denied, then through proper procedures appealed that denial to the state appellatecourts, and ultimately to the KSC.4 He shows only that he filed a mandamus action directly in the KSC, and that this matter remains pending. The court concludes that Mr. Heath has failed to meet his burden of showing that he properly exhausted all available state remedies on all his claims before he filed this action in federal court. This action is dismissed on this basis.
PLAINTIFF FAILS TO STATE A CLAIM UNDER § 1983
To the extent that any of plaintiff's claims might be construed as properly litigated in this civil rights action, such claims are dismissed...
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