White v. Schmidt

• Decision Date: 28 July 2022
• Docket Number: 22-3111-SAC
• Parties: BOBBY BRUCE WHITE, Plaintiff, v. DEREK SCHMIDT, et al., Defendants.
• Court: U.S. District Court — District of Kansas

BOBBY BRUCE WHITE, Plaintiff,
v.
DEREK SCHMIDT, et al., Defendants.

No. 22-3111-SAC

United States District Court, D. Kansas

July 28, 2022

MEMORANDUM AND ORDER TO SHOW CAUSE

SAM A. CROW, U.S. Senior District Judge

Plaintiff Bobby Bruce White is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein.

I. Nature of the Matter before the Court

Plaintiff filed this pro se civil rights case under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff is incarcerated at the Lansing Correctional Facility in Lansing, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 9.)

Petitioner was retried and convicted of first-degree premeditated murder in 2005. State v. White, 284 Kan. 333, 336-37, 161 P.3d 208, 212-13 (2007). In affirming the conviction, the

Kansas Supreme Court set forth the following underlying facts:

In late 1998 or early 1999, White and his wife became guardians of their grandson, B.A.W., who was born in May 1996. In 2001, White accepted a job in Great Bend, Kansas Although the Whites wanted B.A.W. to accompany them, his mother (Mother), who was now married to Aaron Ruboyianes wanted him to stay in Augusta with her. Consequently, she moved to terminate her parents' guardianship in the district court

The Whites visited Mother and Aaron's home in February 2002. Mother was gone at the time. Upon returning, she found Aaron

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upset and scared. According to a letter written by Aaron about the encounter, White told him: “ ‘You guys started this, and I'm gonna finish it once and for all,' ” and “ ‘You guys don't know quite what you're getting into.' ”

On March 25, 2002, the court terminated the Whites' guardianship and reinstated Mother's custody. The next day White left his home in Great Bend for work. He instead drove 2 hours to Augusta, withdrawing $500 in cash on the way. He later returned home to attend a dentist appointment.

The next day, March 27, White again made the 2-hour drive to Augusta. He entered Wal-Mart, Aaron's place of employment, and without warning, shot the unarmed Aaron three times, killing him. He was apprehended in the store parking lot.

Id. “Since his conviction, White has unsuccessfully filed several K.S.A. 60-1507 motions as well as a federal habeas petition pursuant to 28 U.S.C. § 2254 . . .” White v. Kansas, No. 123,792, at 2 (Kan.Ct.App. April 15, 2022) (citing White v. State, No. 116,684, 2017 WL 4848559 (Kan. App. 2017) (unpublished opinion)); see also White v. Roberts, 605 Fed.Appx. 731 (10th Cir. April 1, 2015) (unpublished) (denying certificate of appealability where district court concluded that the § 2254 petition was time-barred and not subject to equitable tolling).

Plaintiff filed the instant civil rights case on June 6, 2022. Plaintiff alleges in Count I of his Complaint that K.S.A. 60-1507 is unconstitutional, arguing that he was denied an evidentiary hearing and that no findings of fact or conclusions of law were ever made in his state habeas proceeding. (Doc. 7, at 8-9.) Plaintiff alleges that findings and conclusions were necessary for him to show manifest injustice. In Count II, Plaintiff claims he has been denied effective assistance of counsel, resulting in malpractice and manifest injustice. Plaintiff then sets forth actions taken by various attorneys representing him in either his state criminal case, the guardianship proceedings that occurred prior to his criminal proceedings, his appeals, or his state

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post-conviction proceedings. Id. at 3-6, 8, 11. Count III purports to set forth a wrongful death claim based on the death of Plaintiff's grandson.

Plaintiff names as Defendants: Derek Schmidt, Kansas Attorney General; David C. All, Private Attorney; Kerwin L. Spencer, Private Attorney; David T. Hudgens, Augusta Police Officer; Jama Mitchell, Sedgwick County Public Defender; Michael P. Whalen, Private (Appeal) Attorney; Michael C. Brown, Private (Appeal) Attorney; Sam Brownback, Former Governor; R. Scott McQuinn, Sumner County Judge; Michael Ward, Butler County Judge; the State of Kansas; the Kansas Bar Association; the City of Augusta, Kansas; and the Augusta Police Department. Plaintiff seeks monetary damages for the wrongful death of Blaine Austin White; declaratory and injunctive relief ruling that K.S.A. 60-1507 is unconstitutional; a declaratory judgment that Plaintiff's issues arise to the level of manifest injustice and with ineffective assistance of counsel; and a $1.00 award to Plaintiff plus costs and attorney's fees.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court

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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). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

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). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). 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) (citation omitted).

The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).

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As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.Ct. at 1974).

III. DISCUSSION

1. Statute of Limitations

Plaintiff alleges that he is bringing this action under 42 U.S.C. §§ 1983, 1985, and 1986. His claims are based on incidents occurring during his 2005 criminal trial and the guardianship proceedings occurring prior to his criminal trial. These claims are barred by the applicable statute of limitations.

The statute of limitations applicable to § 1983 actions is determined from looking at the appropriate state statute of limitations and tolling principles. See Hardin v. Straub, 490 U.S. 536, 539 (1989). “The forum state's statute of limitations for personal injury actions governs civil rights claims under both 42 U.S.C. § 1981 and § 1983....In Kansas, that is the two-year statute of limitations in Kan. Stat. Ann. § 60-513(a).” Brown v. Unified Sch. Dist. 501, Topeka Pub. Sch., 465 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted). The same two-year statute of limitations...