HEISTAND v. COLEMAN, CASE NO. 11-3040-SAC
| Decision Date | 14 April 2011 |
| Docket Number | CASE NO. 11-3040-SAC |
| Parties | KENNY W. HEISTAND, Plaintiff, v. HAROLD COLEMAN, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
OPINION TEXT STARTS HERE
This civil rights complaint, 42 U.S.C. § 1983, was filed pro se by an inmate of the Lansing Correctional Facility, Lansing, Kansas (LCF). The named defendants are "Bourbon County, Kansas"; employees of Bourbon County Sheriff's Department: Sheriff Harold Coleman, Deputy Sheriff Ron Gray, Deputy Michael Feagins, Deputy Dion O'Dell; and employees of the Bourbon County Jail: Corrections Officer (CO) Jimmy Nichols; CO Elbert Parker; Darrell Spencer, Director of Security.
FACTUAL ALLEGATIONS AND BACKGROUND
As factual support for his complaint, Mr. Heistand discusses various criminal charges that have been brought against him in Bourbon County, Kansas, and refers to six different state district court cases. Case No. 05CR33 involved his arrest for misdemeanor battery and assault in January 2005. He alleges that these charges were subsequently dismissed. Case No. 05CR47 involved charges for drug possession, which he alleges arose from defendants planting drugs upon him during his arrest in the prior case. He states that these charges were subsequently dismissed. Case No. 05CR71 involved charges of criminal sexual abuse for which plaintiff was arrested in February 2005. He alleges that the victim fabricated the charges and the investigation by defendants was a "complete sham." He does not provide facts as to the ultimate disposition of these charges. Case No. 08CR20 apparently culminated from events that occurred in August 2006, when defendant CO Parker shot plaintiff with a taser and allegedly fabricated allegations to justify this use of force. Plaintiff was charged with "Battery on LEO" in January 2008, and that this charge was subsequently dismissed.
On-line records on the status of Kansas Department of Corrections offenders indicate that plaintiff has two active sentences: Case No. 05CR82 in which he was convicted of Battery Against Correctional Officer and Case No. 05CR130 in which he was convicted of Traffic Contraband - Correctional Institution. Plaintiff alleges that Case No. 05CR82 involved a physical altercation between defendant Nichols and plaintiff in his cell on in February 2005. He alleges that Nichols hit him in the face, and then falsified reports to say that plaintiff struck him, causing plaintiff to be charged with battery on a law enforcement officer. Plaintiff alleges that Case No. 05CR130 involved defendant Nichols allegedly planting contraband in plaintiff's cell, which led to plaintiff being charged with trafficking contraband into a correctional institution. He also alleges that defendants Nichols and O'Dell gave false testimony at the preliminary hearing and trial.
CLAIMS
Plaintiff makes numerous general allegations including that "Bourbon County law enforcement, corrections officers and unnamed coconspirators" conspired "to fabricate allegations, manufactured, concealed exculpatory evidence, falsify charges, maliciously prosecute and convict plaintiff." He sets forth 15 counts, many with repetitive, conclusory allegations and claims. He asserts that defendants conspired to deprive him of his constitutional rights to due process, a fair trial, access to the courts and counsel, and to be free from unreasonable seizure and cruel and unusual punishment. He also asserts false arrest, malicious prosecution, failure to investigage, fraudulent investigations, mishandling and fabrication of evidence, suppression of exculpatory evidence, and wrongful conviction and imprisonment. He claims investigations were designed to prove a case against him despite his actual innocence. Plaintiff also generally claims failure to properly train, instruct, and sanction employees with regard to use of police power, investigation and interrogation, initiation of criminal charges, accurate and truthful testimony in criminal cases, and prosecution of alleged crimes in the State of Kansas. In addition he claims failure to take remedial action against known pattern of misconduct. Plaintiff also generally asserts that Bourbon County policies, practices, and customs deprived him of his constitutional rights; and that, at a minimum, supervisors and "the government units" were deliberately indifferent to constitutional violations. He claims that the County acted in concert with the Correctional Officers and the Sheriff's Department, and that the "overt acts" were continuing in nature.
More specific allegations by plaintiff include that defendant Nichols enticed another inmate to snitch and fabricate testimony against plaintiff, and that exculpatory evidence was withheld and mishandled that included recordings of plaintiff's discussions with the inmate that testified against him at trial. Heistand also complains of mental health screening and alleges that a mistrial was declared, he was sent to Larned State Hospital for a mental evaluation, and that case was subsequently dismissed. Plaintiff further alleges that defendants interfered with his counsel's ability to provide effective assistance of counsel. In support of this claim, he alleges that the defendants monitored his discussions at the jail with his attorney regarding his criminal cases "on numerous occasions" and interfered with his attempts to contact his attorney by phone. He also claims that in May 2005 defendants listened in on his conversations with his investigator. He alleges that judicial complaints were falsely filed against his retained attorney and his investigator, his attorney withdrew, and he had to rely on court-appointed counsel.1
Plaintiff claims that defendants' acts caused him to be falsely prosecuted, and imprisoned for six years with the resulting loss of his freedom, companionship, and income. He also claims he has suffered severe emotional distress, humiliation, anguish, financial loss, damage to his reputation, physical and mental pain, and fear. He seeks compensatory damages and punitive damages.
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
Plaintiff has filed a motion for leave to proceed in forma pauperis (Doc. 2), and has attached an Inmate Account Statement in support as statutorily mandated. Under 28 U.S.C. § 1915(b)(1), a plaintiff granted such leave is not relieved of the obligation to pay the full fee of $350.00 for filing a civil action. Instead, being granted leave to proceed in forma pauperis merely entitles an inmate to proceed without prepayment of the full fee, and to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).2 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 has been $ 140.92, and the average monthly balance has been $ 70.24. The court therefore assesses an initial partial filing fee of $ 28.00, twenty percent of the average monthly deposit, rounded to the lower half dollar. Plaintiff must pay this initial partial filing fee before this action may proceed further, and will be given time to submit the fee to the court. His failure to submit the initial fee in the time allotted may result in dismissal of this action without further notice.
SCREENING
Because Mr. Heistand is a prisoner, the court is required by statute to screen his complaint and to dismiss the 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 immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
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). Nevertheless, 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). 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). The court employs the same standard for dismissal under § 1915(e)(2)(B)(ii) as that used for motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). To avoid dismissal, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation omitted). Put another way, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. The court accepts all well-pleaded allegations in the complaint as true and considers them in the light most favorable to the nonmovant. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief," dismissal is appropriate. Twombly, 550 U.S. at 558. The complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555. Having screened all materials filed, the court finds the complaint is subject to being dismissed for the following reasons.
CLAIMS BASED UPON DISMISSED CHARGES
With respect to those charges in four distinct state criminal cases that Mr. Heistand alleges were dismissed and did not result in convictions, he has not alleged sufficient facts to show a plausible claim to relief. He does not provide the dates upon which...
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