# Brown v. Stoss

> District Court, D. Kansas · July 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10647428

## Case

- **Court:** District Court, D. Kansas
- **Decided:** July 24, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10647428

## How later opinions describe it (automated extraction)

- noting § 241 does not authorize private right of action

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONTRAY L. BROWN,

Plaintiff,

v. CASE NO. 24-3109-JWL

BRENDA K. STOSS, et al.,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

Plaintiff Dontray L. Brown is hereby required to show good cause, in writing to the
undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s
Complaint that are discussed herein. Plaintiff is also given the opportunity to file an amended
complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. At the time of
filing, Plaintiff was in custody at the Saline County Jail in Salina, Kansas. Plaintiff is currently
out of custody.
Plaintiff alleges that he is the victim of a conspiracy under 18 U.S.C. §§ 241 and 242, and
cites various state court actions as support for his claims. (Doc. 1, at 2.) Plaintiff names three
judges as the only defendants, and makes arguments about decisions in his state court cases.
Plaintiff alleges that he was maliciously prosecuted, his petitions or motions went unheard, and
he was unlawfully extradited from Pennsylvania without a detainer. Id. at 4. He also claims that
he was unlawfully sentenced and is being unlawfully prosecuted. Id. at 5.
Plaintiff names as defendants: Brenda K. Stoss, Saline County Municipal Judge; Paul H.
Hickman, Saline County District Judge; and Jacob Peterson, Saline County District Judge.
Plaintiff seeks monetary damages. Id. at 6.
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

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). 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
Plaintiff does not have a cause of action under 18 U.S.C. § 241 or § 242. Plaintiff does
not have a private right of action to enforce criminal laws. As a general matter, federal criminal
statutes that “do not provide for a private right of action” are “not enforceable through a civil
action.” Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); see Houck v. Gurich, 515 F.

App’x 724, 724–25 (10th Cir. 2013) (unpublished) (“18 U.S.C. § 242 does not create a private
civil cause of action.”) (citations omitted); Henry v. Albuquerque Police Dep’t, 49 F. App’x 272,
273 (10th Cir. 2002) (unpublished) (citing Newcomb v. Ingle, 827 F.2d 675, 677 n. 1 (10th Cir.
1987) (noting § 241 does not authorize private right of action); Cok v. Cosentino, 876 F.2d 1, 2
(1st Cir. 1989) (same to both §§ 241 and 242)).
Plaintiff has named two state district court judges and a municipal judge as defendants
and seeks only monetary damages. Any official capacity claims against state officials for
monetary damages are barred by sovereign immunity. Furthermore, state officers acting in their
official capacity are not considered “persons” against whom a claim for damages can be brought

under § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).
The State of Kansas and its agencies are absolutely immune from suits for money
damages under the Eleventh Amendment. The Eleventh Amendment presents a jurisdictional bar
to suits against a state and “arms of the state” unless the state waives its immunity. Peterson v.
Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2
v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). Therefore, in the absence of
some consent, a suit in which an agent or department of the state is named as a defendant is
“proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984). It is well established that Congress did not abrogate the states’ sovereign
immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 338–45 (1979); Ruiz v.
McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). District court judges are state officials.
Schroeder v. Kochanowski, 311 F. Supp. 2d 1241, 1256 (D. Kan. 2004), see also Sigg v. Dist.
Court of Allen Cty., Kan., No. 11-2625-JTM, 2012 WL 941144, at *4 (D. Kan. March 20, 2012)
(district court judge is a state official and official capacity claims against judge for money

damages are barred).
The defendant judges are also entitled to personal immunity. “Personal immunities . . .
are immunities derived from common law which attach to certain governmental officials in order
that they not be inhibited from ‘proper performance of their duties.’” Russ v. Uppah, 972 F.2d
300, 302–03 (10th Cir. 1992) (citing Forrester v. White, 484 U.S. 219, 223, 225 (1988)).
Plaintiff’s claims against the judges should be dismissed on the basis of judicial
immunity. A state judge is absolutely immune from § 1983 liability except when the judge acts
“in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)
(articulating broad immunity rule that a “judge will not be deprived of immunity because the

action he took was in error, was done maliciously, or was in excess of his authority . . . .”); Hunt
v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994); see also Nelson v. Skehan, 386 F. App’x 783,
787 (10th Cir. 2010) (unpublished) (finding municipal judge absolutely immune from suit)
(citing Stein v. Disciplinary Bd. of Sup. Ct.of N.M., 520 F.3d 1183, 1190 (10th Cir. 2008)); see
also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188–90 (10th Cir. 2003) (finding
dismissal of claims against municipal judge on immunity grounds was proper, and finding that
municipal judge obtains authority from state law and was not a municipal policymaker for
purposes of § 1983 liability). Only actions taken outside a judge’s judicial capacity will deprive
the judge of judicial immunity. Stump, 435 U.S. at 356–57. Plaintiff alleges no facts whatsoever
to suggest that any of the defendant judges acted outside of their judicial capacity. Plaintiff
should show good cause why his claims against the defendant judges should not be dismissed
based on immunity.
The Court may also be prohibited from hearing Plaintiff’s claims regarding his state court
actions under Younger v. Harris, 401 U.S. 37, 45 (1971). “The Younger doctrine requires a

federal court to abstain from hearing a case where . . . (1) state judicial proceedings are ongoing;
(2) [that] implicate an important state interest; and (3) the state proceedings offer an adequate
opportunity to litigate federal constitutional issues.” Buck v. Myers, 244 F. App’x 193, 197 (10th
Cir. 2007) (unpublished) (citing Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th
Cir. 2003); see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432
(1982)). “Once these three conditions are met, Younger abstention is non-discretionary and,
absent extraordinary circumstances, a district court is required to abstain.” Buck, 244 F. App’x
at 197 (citing Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th
Cir. 2003)).

Plaintiff should clarify whether any of his proceedings are currently ongoing. If so, the
first and second conditions for Younger abstention would be met because Kansas undoubtedly
has an important interest in enforcing its criminal laws through criminal proceedings in the
state’s courts. In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007) (“[S]tate control over criminal
justice [is] a lynchpin in the unique balance of interests” described as “Our Federalism.”) (citing
Younger, 401 U.S. at 44). Likewise, the third condition would be met because Kansas courts
provide Plaintiff with an adequate forum to litigate his constitutional claims by way of pretrial
proceedings, trial, and direct appeal after conviction and sentence, as well as post-conviction
remedies. See Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993) (“[F]ederal courts should
abstain from the exercise of . . . jurisdiction if the issues raised . . . may be resolved either by trial
on the merits in the state court or by other [available] state procedures.”) (quotation omitted); see
Robb v. Connolly, 111 U.S. 624, 637 (1984) (state courts have obligation ‘to guard, enforce, and
protect every right granted or secured by the constitution of the United States . . . .’”); Steffel v.
Thompson, 415 U.S. 452, 460–61 (1974) (pendant state proceeding, in all but unusual cases,

would provide federal plaintiff with necessary vehicle for vindicating constitutional rights).
“[T]he Younger doctrine extends to federal claims for monetary relief when a judgment
for the plaintiff would have preclusive effects on a pending state-court proceeding.” D.L. v.
Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004). Such a claim for damages
may need to be stayed pending resolution of the state court proceedings. See Garza v. Burnett,
672 F.3d 1217, 1220 (10th Cir. 2012) (citing Wallace v. Kato, 549 U.S. 384, 393 (2007)); Myers
v. Garff, 876 F.2d 79, 81 (10th Cir. 1989) (directing district court to stay claim for damages).
Plaintiff also claims that he was unlawfully sentenced. To the extent Plaintiff challenges
the validity of his sentence in his state criminal case, his federal claim must be presented in

habeas corpus. “[A] § 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or length of his
custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (emphasis added). When the legality
of a confinement is challenged so that the remedy would be release or a speedier release, the case
must be filed as a habeas corpus proceeding rather than under 42 U.S.C. § 1983, and the plaintiff
must comply with the exhaustion of state court remedies requirement. Heck v. Humphrey, 512
U.S. 477, 482 (1994); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000)
(exhaustion of state court remedies is required by prisoner seeking habeas corpus relief); see 28
U.S.C. § 2254(b)(1)(A) (requiring exhaustion of available state court remedies). “Before a
federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies
in state court. In other words, the state prisoner must give the state courts an opportunity to act
on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999); see Woodford v. Ngo, 548 U.S. 81, 92 (2006); Rose v.
Lundy, 455 U.S. 509, 518–19 (1982); Therefore, any claim challenging his state sentence is not

cognizable in a § 1983 action.
Likewise, before Plaintiff may proceed in a federal civil action for monetary damages
based upon an invalid conviction or sentence, he must show that his conviction or sentence has
been overturned, reversed, or otherwise called into question. Heck v. Humphrey, 512 U.S. 477
(1994). If Plaintiff has been convicted and a judgment on Plaintiff’s claim in this case would
necessarily imply the invalidity of that conviction, the claim may be barred by Heck. In Heck v.
Humphrey, the United States Supreme Court held that when a state prisoner seeks damages in a
§ 1983 action, the district court must consider the following:
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.

Id. at 487. In Heck, the Supreme Court held that a § 1983 damages claim that necessarily
implicates the validity of the plaintiff’s conviction or sentence is not cognizable unless and until
the conviction or sentence is overturned, either on appeal, in a collateral proceeding, or by
executive order. Id. at 486–87. Plaintiff has not alleged that a conviction or sentence has been
invalidated.
Plaintiff has filed a request for subpoenas (Doc. 7), seeking to obtain financial
information in support of his motion for leave to proceed in forma pauperis. The Court is
granting Plaintiff’s motion, and therefore his request for subpoenas is moot.
Plaintiff has also filed a request to join parties (Doc. 9) seeking to add defendants to this
case. This request is also moot in light of the Court granting Plaintiff an opportunity to submit
an amended complaint to cure the deficiencies noted in this Memorandum and Order to Show
Cause. Plaintiff should list all proper defendants in his amended complaint.
IV. Response and/or Amended Complaint Required

Plaintiff is required to show good cause why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete
and proper amended complaint upon court-approved forms that cures all the deficiencies
discussed herein. To add claims, significant factual allegations, or change defendants, a plaintiff
must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended complaint is
not simply an addendum to the original complaint, and instead completely supersedes it.
Therefore, any claims or allegations not included in the amended complaint are no longer before
the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended
complaint must contain all allegations and claims that a plaintiff intends to pursue in the action,

including those to be retained from the original complaint.
Plaintiff must write the number of this case (24-3109-JWL) at the top of the first page of
the amended complaint and must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the
amended complaint, where Plaintiff must allege facts describing the unconstitutional acts taken
by each defendant including dates, locations, and circumstances. Plaintiff must allege sufficient
additional facts to show a federal constitutional violation. Plaintiff is given time to file a
complete and proper amended complaint in which Plaintiff (1) raises only properly joined claims
and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation
and show a cause of action in federal court; and (3) alleges sufficient facts to show personal
participation by each named defendant. If Plaintiff does not file an amended complaint within
the prescribed time that cures all the deficiencies discussed herein, this matter may be dismissed
without further notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motion for leave to

proceed in forma pauperis (Doc. 2) is granted. Plaintiff remains obligated to pay the remainder
of the $350.00 filing fee.
IT IS FURTHER ORDERED that Plaintiff is granted until August 26, 2024, in which
to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until August 26, 2024, in
which to file a complete and proper amended complaint to cure all the deficiencies discussed
herein.
The Clerk is directed to send § 1983 forms and instructions to Plaintiff.

IT IS SO ORDERED.
Dated July 24, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10647428. Public record. Not legal advice.