Petition for Writ of Certiorari — Maurice Bernard Moore, Petitioner v. Daniel L. Hebert, former District Judge, Saline County of Kansas, et al.

No.________ ________________

In The

SUPREME COURT OF THE UNITED STATES

MAURICE B. MOORE, PETITIONER

vs.

DANIEL L. HEBERT, et al., RESPONDENTS

RE: No. 24-3092; (D.C. No. 2:23-CV-02385-JAR-TJJ) (D. Kan.)

CORRECTED APPENDICES

~

Petitioner’s Appendices A through Q, that are associated with both

Federal and State cases. Appendix ‘P’ was, removed

MAURICE B. MOORE

4938 HAMPDEN LANE, UNIT 576

BETHESDA, MD. 20814

(301) 523-6586

08-04-25

Appellate Case: 24-3092

Document: 25-1

Date Filed: 02/05/2025

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Page: 1

FILED

United States Court of Ap]

Tenth Circuit

February 5, 2025

Christopher M. Wolpei

Clerk of Court

MAURICE BERNARD MOORE,

r--- ■-------- „

Plaintiff - Appellant,

v.

DANIEL L. HEBERT, former Saline

County District Judge, in his official

capacity; JULIE MCKENNA, former

Saline County District Attorney, in her

official capacity; RALPH J. DEZAGO,

former Kansas Public Defender, in his

official capacity; SALINE COUNTY,

KANSAS,

No. 24-3092

(D.C. No. 2:23-CV-02385-JAR-TJJ)

(D. Kan.)

Defendants - Appellees.

ORDER AND JUDGMENT*

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS,

Circuit Judge.

Proceeding pro se and in forma pauperis, Maurice Bernard Moore appeals

/

from the district court’s order dismissing his complaint against the Honorable Daniel

* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and collateral

estoppel. It may be cited, however, for its persuasive value consistent with

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Append iy-A

Appellate Case: 24-3092

Document: 25-1

Date Filed: 02/05/2025

Page: 2

L. Hebert, Julie McKenna, Ralph Z. DeZago, and Saline County, Kansas. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Background

In 1986, Mr. Moore pled guilty in Kansas state court to aggravated battery

against a law enforcement officer and unlawful possession of a firearm. Ten years

later the state court granted his application for post-conviction relief and vacated his

convictions on the grounds that his guilty plea had been improperly accepted.

Specifically, the court held that Mr. Moore’s trial judge had failed to ascertain

whether his plea was knowing and voluntary and had improperly relied on

Mr. Moore’s signature instead of requiring him to enter his plea in open court.

Shortly thereafter, the State filed an amended information against Mr. Moore, and in

1997, he again pled guilty to charges of aggravated battery and unlawful possession

of a firearm, in addition to a concealed weapons charge. He received an

indeterminate sentence of thirty years to life imprisonment. The 1997 criminal

proceeding was presided over by defendant Hebert and prosecuted by defendant

McKenna. Defendant DeZago acted as Mr. Moore’s public defender.

Ever since his 1997 conviction, Mr. Moore has been arguing that the second

prosecution violated his rights under the Double Jeopardy Clause of the Fifth

Amendment. The state court rejected this argument on direct appeal. Mr. Moore

then filed a petition for a writ of habeas corpus in federal court, which also rejected

his double-jeopardy argument. This court denied a certificate of appealability in that

2

4

Appellate Case: 24-3092

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Date Filed: 02/05/2025

Page: 3

case, specifically holding the double-jeopardy argument lacked merit. See Moore v.

Nelson, 49 Fed. App’x 250, 252 (10th Cir. 2002).

Undeterred, Mr. Moore then filed this case, alleging the defendants knew that

the 1997 prosecution was barred by double jeopardy but proceeded anyway in a

conspiratorial effort to deprive him of his constitutional rights. His complaint

asserted claims against the individual defendants under 42 U.S.C. §§ 1983 and 1985;

18 U.S.C. §§241 and 4 (criminal conspiracy and misprision of a felony); and

18 U.S.C. § 1589 (the criminal forced labor statute). Mr. Moore also sued Saline

County, bringing what the district court construed as a failure-to-supervise claim

under Monell v. Dep’t ofSoc. Servs., 436 U.S. 658 (1978).

On the defendants’ motions, and pursuant to its own obligations under

28 U.S.C. § 1915(e)(2), the court dismissed Mr. Moore’s claims for lack of subject

matter jurisdiction and failure to state a claim. First, the court held Mr. Moore’s

complaint was barred by both the Rooker-Feldman doctrine1 and Heck v. Humphrey,

512 U.S. 477 (1994), because at bottom, all his claims were premised on a double

jeopardy argument that had been uniformly rejected by every court that had examined

the issue. The court went on to explain that even if it had jurisdiction, Judge Hebert

and McKenna were immune from suit, and DeZago was not a state actor for purposes

of § 1983. The court also noted that there is no private right of action for criminal

conspiracy and misprision of a felony. And although the forced labor statute does

1 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia

Ct. ofAppeals v. Feldman, 460 U.S. 462 (1983).

Am- a

m

3

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Page: 4

provide a civil remedy, it observed that the statute of limitations had long since run

on any such claims. Finally, the court concluded Mr. Moore had failed to properly

plead a Monell claim against the county.

This timely appeal followed.

II.

Discussion

a. Standard of Review

We review dismissals for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) de novo. Mann v. Boatright, 477 F.3d 1140, 1145

(10th Cir. 2007) (lack of jurisdiction). Because Mr. Moore proceeds pro se, we have

accorded his briefs a liberal construction and made allowances for his failure to cite

proper legal authority and his confusion of certain legal principles. See Garrett v.

Selby Connor Maddux & Janner, 425 F.3d 836, 840 (10th Cir. 2005). But the court

does not assume the responsibility of acting as advocate for the pro se litigant in

constructing arguments and searching the record. Id.

b. Subject Matter Jurisdiction

The Rooker-Feldman doctrine says that a party who loses in state court “is

barred from seeking what in substance would be appellate review of the state

judgment in a United States district court, based on the losing party’s claim that the

state judgment itself violates the loser’s federal rights.” Johnson v. De Grandy, 512

U.S. 997, 1005-06 (1994). The doctrine is jurisdictional in nature. Campbell v. City

of Spencer, 682 F.3d 1278, 1281 (10th Cir. 2012). For Mr. Moore this means that

having lost in state court, he “cannot file a federal complaint seeking review and

dppy.-a

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Date Filed: 02/05/2025

Page: 5

reversal of the unfavorable judgment.” Mann, 477 F.3d at 1146. That is precisely

what he is attempting to do in this case. Mr. Moore’s Second Amended Complaint

specifically requests injunctive relief by way of an order directing Saline County to

correct the records in his criminal case. The district court plainly lacked jurisdiction

to issue such an order. Nor can this court consider Mr. Moore’s various arguments

attacking the validity of his 1997 conviction. As we explained in Campbell, the

Rooker-Feldman doctrine precludes review of a claim, an element of which is “that

the state court wrongfully entered its judgment.” Id. at 1283. Here, all Mr. Moore’s

claims are premised on that very assertion. Accordingly, the district court correctly

concluded it lacked subject matter jurisdiction and properly dismissed his complaint.2

The judgement of the district court is affirmed.

Entered for the Court

Gregory A. Phillips

Circuit Judge

2 Because the district court lacked subject matter jurisdiction over Mr. Moore’s

claims, we do not address its alternative bases for dismissing his complaint.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Jurisdiction is

power to declare the law, and when it ceases to exist, the only function remaining to

the court is that of announcing the fact and dismissing the cause.”).

Appellate Case: 24-3092

Document: 36-1

Date Filed: 03/07/2025

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Page: 1

FILED

United States Court of Apj

Tenth Circuit

March 7,2025

Christopher M. Wolpei

Clerk of Court

MAURICE BERNARD MOORE,

Plaintiff - Appellant,

No. 24-3092

(D.C. No. 2:23-CV-02385-JAR-TJJ)

(D. Kan.)

v.

DANIEL L. HEBERT, former Saline

County District Judge, in his official

capacity, et al.,

Defendants - Appellees.

ORDER

Before MATHESON, LUCERO, and PHILLIPS, Circuit Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court

who are in regular active service. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, that petition is also denied.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

APPciJDiy-b

Appellate Case: 24-3092

Document: 35

Date Filed: 03/07/2025

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Page: 1

FILED

United States Court of App

Tenth Circuit

March 7,2025

Christopher M. Wolper

Clerk of Court

MAURICE BERNARD MOORE,

Plaintiff - Appellant,

No. 24-3092

(D.C. No. 2:23-CV-02385-JAR-TJJ)

(D. Kan.)

DANIEL L. HEBERT, former Saline

County District Judge, in his official

capacity, et al.,

Defendants - Appellees.

ORDER

Before MATHESON, LUCERO, and PHILLIPS, Circuit Judges.

This matter is before the court on Petitioner’s Request Relieffrom Judgment or

Order. The motion is denied.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

/iPfic-A/D/X-C

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

MAURICE BERNARD MOORE,

Plaintiff,

Case No. 23-2385-JAR-TJJ

v.

DANIEL L. HEBERT et al.,

Defendants.

MEMORANDUM AND ORDER

Plaintiff Maurice Bernard Moore, proceeding pro se and in forma pauperis, brings this

civil rights action against Defendants Daniel L. Hebert, Julie McKenna, Ralph J. DeZago, and

Saline County, Kansas. Before the Court are the following motions: Plaintiffs motion entitled

“Plaintiff Moore Charges All Defendants with Committing Fraud Upon the Court” (Doc. 69);

Defendant Ralph DeZago’s Motions to Dismiss (Docs. 77 and 84);1 Plaintiff Moore’s Request

for Dismissal of Miscellaneous Items (Doc. 81); Defendant Daniel Hebert’s Motion to Dismiss

(Doc. 88); Defendant Julie McKenna’s Motion to Dismiss (Doc. 92); the parties’ Motions to

Strike (Docs. 104, 106, and 108) certain briefs on the motions to dismiss; and Plaintiffs Motion

for Leave to File a Surreply (Doc. 110) as to all of Defendants’ motions to dismiss. The motions

are fully briefed and the Court is prepared to rule. As described more fully below, Defendants’

motions to dismiss are granted and Plaintiffs motion seeking relief on the basis that Defendants

committed fraud upon the Court is denied. Plaintiffs motion to dismiss his requests for punitive

damages and injunctive relief is granted as unopposed. The parties’ motions to strike are denied.

1 DeZago’s first motion to dismiss addresses Plaintiffs Claims in his motion invoking Fed. R. Civ. P.

60(b)(3), and moving to dismiss them for lack of subject matter jurisdiction and failure to state a claim. Docs. 77,

78. DeZago’s second motion to dismiss addresses Plaintiffs claims asserted in the Second Amended Complaint.

Docs. 84, 85.

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 2 of 18

Plaintiff’s motion for leave to file surreplies to the motions to dismiss is granted; the Court has

considered his surreplies in ruling on the motions to dismiss.

I.

Background

A.

Factual Allegations

The following facts are derived from Plaintiff s Amended Complaint2 and Second

Amended Complaint.3 The Court also includes procedural history regarding Plaintiffs criminal

convictions taken from the Kansas Court of Appeals’ decision in State v. Moore,4 and the Tenth

Circuit’s decision in Moore v. Nelson? The Court takes judicial notice of these decisions and the

adjudicative facts therein under Fed. R. Evid. 201(b) because they “can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.”6 The Court “may

‘take judicial notice of its own files and records, as well as facts which are a matter of public

record,’ without converting a motion to dismiss into a motion for summary judgment.”7

Plaintiff’s pleadings in this case are based on his contention that his state criminal

conviction in 1997 was a double jeopardy violation. He alleges that Hebert (the presiding

Kansas state district court judge), McKenna (the prosecutor), and DeZago (his public defender)

conspired to force him into an illegal conviction and sentence for which he had already been

acquitted.

2 Doc. 9.

3 Doc. 76.

4 No. 81,130, 1999 WL 35814431 (Kan. Ct. App. Dec. 30,1999).

5 49 F. App’x 250 (2002).

6 Fed. R. Evid. 201(b)(2).

7 Johnson v. Spencer, 950 F.3d 680, 705 (10th Cir. 2020) (quoting Tai v. Hogan, 453 F.3d 1244, 1264 n.24

(10th Cir. 2006)).

AW -D

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 3 of 18

The Kansas Court of Appeals’ decision denying Plaintiffs direct appeal of his 1997

conviction and sentence summarized the procedural history up until that point as follows:

On February 13, 1986, Moore pled guilty to aggravated battery

against a law enforcement officer and unlawful possession of a

firearm. Approximately 10 years later, on November 8, 1996, the

district court granted Moore’s K.S.A. 60-1507 motion and set aside

the convictions, finding that Moore’s guilty plea was improperly

accepted. The journal entry was filed in the district court on

November 12, 1986. Moore was returned to the custody of the

Saline County Sheriff and held for trial.

The State filed an amended information on January 13, 1997. On

April 10, 1997, Moore again pled guilty to the charges of

aggravated battery against a law enforcement officer, unlawful

possession of a firearm, and a misdemeanor concealed weapon

charge. On April 22, 1997, Moore was sentenced to an

indeterminate sentence of 30 years to life.8

After Plaintiffs direct appeal was denied, he brought another post-conviction motion

challenging his sentence, which the Kansas Court of Appeals denied; the Kansas Supreme Court

denied review.9 He then filed a petition for writ of habeas corpus in federal court.10

The district court denied relief, holding that (1) jeopardy did not

attach when petitioner entered his 1986 plea because the factual

basis was not evidence upon which the district court found

petitioner guilty; (2) petitioner’s argument that his conviction was

based on insufficient evidence failed for the same reason; (3)

petitioner’s speedy trial argument based on state law was not

cognizable on habeas review; (4) the speedy trial “clock” was reset

when petitioner’s initial plea was vacated, and the delay between

this event and his second guilty plea was not presumptively

prejudicial; (5) alternatively, the speedy trial issue was waived by

petitioner’s voluntary and intelligent guilty plea; (6) petitioner was

not deprived of equal protection or due process because he was

ineligible for sentence conversion under the new sentencing

guidelines; (7) petitioner’s ineffective assistance claims were

without merit under Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984); and (8) petitioner’s claims of

8 1999 WL 35814431, at *1.

9 49 F. App’x at 252.

'°Id.

3

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 4 of 18

1

judicial misconduct failed either because they were wholly lacking

in merit or because they were based on an alleged violation of state

law.11

The Tenth Circuit determined that Plaintiff failed to make the showing necessary to obtain a

certificate of appealability, specifically noting that his “double jeopardy claim has no merit.”12

Plaintiff alleges in this case that in 1986, the state court accepted his guilty plea to felony

offenses based on stipulated facts. He further alleges that the record from the plea hearing shows

that those facts failed to support all of the required elements for the aggravated battery and

firearms charges. Thus, Plaintiff maintains in this action that under “K.S.A. 21-3108 . ..

whenever the evidence of a conviction only supports an included offense the defendant is

automatically acquitted of the offense charged. The evidence presented by the State in 1986

against Moore only supported the lesser included offense, resulting in implied acquittal.”13

Plaintiff alleges that Judge Hebert knew in 1997 that when the court accepted the stipulated facts

for his guilty plea in 1986 for the lesser included charge of simple battery, Plaintiff was

automatically acquitted of the felony charges. Plaintiff alleges that despite this knowledge,

Judge Hebert concealed this information from him with the cooperation of McKenna and

DeZago.

B.

Claims

42 U.S.C. § 1983 provides a cause of action for “the deprivation of any rights, privileges,

or immunities secured by the Constitution” by any person acting under the color of state law.

Liberally construing the pleadings, Plaintiff brings individual-capacity claims under § 1983, and

a conspiracy claim under § 1985, against the individual Defendants for constitutional violations

n Id.

uId.

13 Doc. 76 at 3.

flPEV—D

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 5 of 18

of the Fifth Amendment’s Double Jeopardy Clause, and the Fourteenth Amendment’s Due

Process and Equal Protection Clauses. Plaintiff also asserts claims in his Amended Complaint,

which he incorporated by reference into his Second Amended Complaint, for a conspiracy

violation under 18 U.S.C. § 241, Misprision of a Felony under 18 U.S.C. § 4, and forced labor

under 18 U.S.C. § 1589.

In addition to Judge Hebert, McKenna, and DeZago, Plaintiff also names Saline County,

Kansas (“the County”) as a Defendant, and states that he sues the County is in its individual

capacity. Specifically, Plaintiff alleges that the County failed to train and supervise the

individual Defendants, despite being on notice in 1997 that there were deficiencies in Plaintiffs

conviction. However, Plaintiff does not name an individual County officer; he only names the

County itself. Without a named individual, Plaintiff cannot maintain an individual-capacity suit

against the County. Thus, the Court liberally construes the pleadings as alleging an official­

capacity claim against the County for failure to train and supervise.

The Second Amended Complaint seeks compensatory damages, punitive damages, and

injunctive relief. However, Plaintiff moves to dismiss his claims for punitive damages and

injunctive relief. That motion is granted as unopposed, leaving only Plaintiff s claim for

compensatory damages.

II.

Subject Matter Jurisdiction

The Court first addresses subject matter jurisdiction, a threshold defense that must be

addressed before any merits-based issues.14 Federal courts are courts of limited jurisdiction and

must therefore have a statutory or constitutional basis for exercising jurisdiction.15 The party

14 See Steel Co. v. Citizensfor a Better Env’t, 523 U.S. 83, 94 (1998).

ll lbjiteAStatesji. Hardage,_5$ E.34569, 57_4_(1.0.th Cir._L99.5_).

W--1>

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 6 of 18

seeking to invoke federal subject matter jurisdiction has the burden to establish that jurisdiction

is proper,16 and mere conclusory allegations ofjurisdiction are not enough.17 Defendants all

argue that the Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine.

DeZago argues further that Plaintiff lacks standing to assert the claims alleged against him.

A.

Rooker-Feldman Doctrine

Defendants first argue that the Rooker-Feldman doctrine bars this Court’s jurisdiction.

Under the Rooker-Feldman doctrine, the Court lacks subject matter jurisdiction over “cases

brought by state-court losers complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting district court review and rejection

of those judgments.”18

Defendants argue that all of Plaintiff s claims depend on this Court’s review of his 1997

state court conviction; thus, the doctrine applies. Plaintiff responds that he does not ask the

Court to “review” the state court conviction in his Second Amended Complaint. He contends

that because his 1986 conviction resulted in an implied acquittal, the law is self-executing and,

therefore, the Court need not review the state court’s decisions in exercising jurisdiction here.

The Court agrees with Defendants that Plaintiffs case, by definition, requires this Court

to find that his 1997 conviction was unconstitutional. Regardless of whether Plaintiff used the

word “review” in his pleading, all of his claims are premised on the argument that he should not

have been recharged in 1997 after his 1986 conviction was vacated because it constituted double

16 Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. ofAm.,

511 U.S. 375, 377 (1994)).

17 United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).

18 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

AW -J)

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 7 of 18

jeopardy. Notably, Plaintiff raised a double jeopardy argument in his federal habeas proceeding

challenging the 1997 conviction and sentence, which the Tenth Circuit rejected.19

Plaintiff argues that under K.S.A. § 21-3108, the ruling that vacated his 1986 conviction

operated as an implied acquittal of the charges brought in 1997. Thus, he claims that the 1997

conviction violated his double jeopardy rights. The Kansas statute cited by Plaintiff governing

the effect of a former prosecution has been repealed and replaced by K.S.A. § 21-5110. Under

that revised statute, “[a] prosecution is not barred under this section ... if subsequent

proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction,

unless the defendant was adjudged not guilty.”20 This is consistent with the Tenth Circuit’s

ruling in Plaintiffs habeas case that double jeopardy generally “does not prevent the government

from retrying a defendant who succeeds in getting his first conviction set aside, through direct

appeal or collateral attack, because of some error in the proceedings leading to conviction.”21

Plaintiffs 1986 conviction and sentence were set aside through collateral attack. He was not

acquitted. Therefore, Plaintiff, who lost his appeal and collateral attack in state court, and lost on

this argument in his federal court habeas proceedings, filed this action claiming injuries caused

by his second conviction, and asks this Court to reject those judgments. Such claims are barred

under the Rooker-Feldman doctrine.

B.

Standing

DeZago argues that Plaintiff lacks standing as to the claims against him because DeZago

was not acting under color of state law, and because Plaintiff was not acquitted of the criminal

charges. Article III of the Constitution permits federal courts to decide only “Cases” or

19 Moore v. Nelson, 49 F. App’x 250, 252 (10th Cir. 2002).

20 K.S.A. § 21-5110(d)(3).

21 Moore, 49 F. App’x at 252 (quoting Lockhart v. Nelson, 488 U.S. 33, 38 (1988)).

A W ->

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 8 of 18

1

“Controversies.”22 Article III standing is jurisdictional; therefore, the party seeking federal

jurisdiction bears the burden to establish standing.23 To establish Article III standing, Plaintiff

must adequately show that he has “(1) suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.”24 The Court is satisfied that Plaintiff has alleged sufficient facts to establish standing

at this stage of the proceedings.25

HI.

Failure to State a Claim

Out of an abundance of caution, the Court considers whether Plaintiff has stated a claim

upon which relief can be granted, assuming it has jurisdiction. Under Rule 12(b)(6), “only a

complaint that states a plausible claim for relief survives a motion to dismiss.”26 “[M]ere ‘labels

and conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not

suffice; a plaintiff must offer specific factual allegations to support each claim.”27 Finally, the

Court must accept the nonmoving party’s factual allegations as true and may not dismiss on the

ground that it appears unlikely the allegations can be proven.28

The Supreme Court has explained the analysis as a two-step process. For the purposes of

a motion to dismiss, the court “must take all of the factual allegations in the complaint as true,

22 U.S. Const, art. HI, § 2; see Hollingsworth v. Perry, 570 U.S. 693, 704 (2013).

23 TransUnion LLC v. Ramirez, 594 U.S. 413, 430—31 (2021).

24 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citations omitted); Kerr v. Polis, 20 F.4th 686, 692

(10th Cir. 2021) (en banc) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).

25 See, e.g., Lujan, 504 U.S. at 561 (explaining that at the pleading stage, “general factual allegations of

injury resulting from the defendant’s conduct may suffice.”).

26 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)).

27 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,1214 (10th Cir. 2011) (quoting Twombly., 550 U.S.

at 555).

28 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 9 of 18

[but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”29

Thus, the court must first determine if the allegations are factual and entitled to an assumption of

truth, or merely legal conclusions that are not entitled to an assumption of truth.30 Second, the

court must determine whether the factual allegations, when assumed true, “plausibly give rise to

an entitlement to relief.”31 “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”32

Additionally, because Plaintiff proceeds in forma pauperis, 28 U.S.C. § 1915(e)(2)

applies. Under that statute, a court shall dismiss a plaintiffs case if the court determines the

action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.”33

As explained below, even if the Rooker-Feldman doctrine does not deprive the Court of

jurisdiction over this matter, the Court would dismiss for failure to state a claim.

A.

Claims Alleging Violations of Criminal Statutes

Plaintiff purports to assert claims that Defendants engaged in conspiracy under 18 U.S.C.

§ 241, Misprision of a Felony under 18 U.S.C. § 4, and forced labor under 18 U.S.C. § 1589.

Defendants move to dismiss these claims because there is no private right of action under 18

29 Id. (quoting Twombly, 550 U.S. at 555).

™Id. at 678-79.

31 Id. at 679.

32 Id. at 678.

33 28 U.S.C. § 1915(e)(2)(B).

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 10 of 18

U.S.C. §§ 241, 242, or 4.34 The Court agrees. These are criminal offenses that must be brought

by the United States in a criminal action.

Plaintiff also alleges a claim of forced labor under 18 U.S.C. § 1589. That is a criminal

statute; however, there is a private right of action under 18 U.S.C. § 1595 for violations of

§ 1589. For the reasons described below, that claim is barred by the statute of limitations and

Defendants’ individual defenses.

B.

Statute of Limitations

All Defendants move to dismiss under the statute of limitations. Although generally an

affirmative defense, a court may resolve statute-of-limitations questions on a Rule 12(b)(6)

motion to dismiss “[w]hen a complaint shows on its face that the applicable statute of limitations

has expired.”35

Federal courts apply the forum state’s statute of limitations for personal injury actions to

claims asserted under §§ 1983 and 1985.36 State law also governs questions of tolling, unless

state tolling rules would “defeat the goals” of § 1983.37 Federal law, however, determines when

§ 1983 claims accrue.38

34 See Cent. Bank ofDenver, N.A. v. First Interstate Bank ofDenver, N.A., 511 U.S. 164, 190 (1994)

(explaining that the Court generally declines to infer a private cause of action based on a criminal prohibition alone).

35 Barnett v. Corr. Corp, ofAm., 441 F. App’x 600, 601 (10th Cir. 2011) (citing Frederick v. Oklahoma, 42

F.3d 1406, 1406 (10th Cir. 1994)).

36 Id.', see also Lyons v. Kyner, 367 F. App’x 878, 881—82 (10th Cir. 2010).

37 Hardin v. Straub, 490 U.S. 536, 539 (1989).

38 McDonough v. Smith, 588 U.S. 109, 115 (2019) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)).

Case 2:23-cv-02385-JAR-TJJ Document 118 Filed 06/11/24 Page 11 of 18

The statute of limitations under 18 U.S.C. § 1595 for forced labor is ten years.39 In

Kansas, the statute of limitations for personal injury actions is two years.40 Under federal law,

claims generally accrue “when the plaintiff knows or has reason to know of the injury which is

the basis of the action.”41 “ [I]t is not necessary that a claimant know all of the evidence

ultimately relied on for the cause of action to accrue,”42 and “[t]he cause of action accrues even

though the full extent of the injury is not then known or predictable.”43

Plaintiff alleges claims based on events in 1996 and 1997. Therefore, the statute of

limitations expired on his civil rights claims in 1998 and 1999, and on his forced labor claim in

2006 or 2007. Plaintiff alleges that he did not discover the alleged fraud until June 2022, when a

paralegal he hired discovered a Kansas case that he claims supports his position that he had been

acquitted of the charge in 1986 and therefore his 1997 recharge was barred. If Plaintiff s claims

are based on the existence of a published case, he could have known of this basis prior to 2022

through the exercise of due diligence.

To the extent Plaintiff alleges that fraudulent concealment tolls the statute of limitations,

he “must show: (1) the use of fraudulent means by the party who raises the ban of the statute [of

limitations]; (2) successful concealment from the injured party; and (3) that the party claiming

fraudulent concealment did not know or by the exercise of due diligence could not have known

39 18 U.S.C. § 1595(c)(1). Prior to 2008, the statute of limitations was four years. See Gilbert v. U.S.

Olympic Comm., 423 F. Supp. 3d 1112,1129 (D. Colo. 2019) (discussing amendment). Under either statute,

Plaintiffs time has run.

40 K.S.A § 60-513(a)(4).

41 Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005) (quoting Baker v. Bd. ofRegents, 991 F.2d 628,

632 (10th Cir. 1993)).

42 Baker, 991 F.2d at 632 (citing Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988)).

43 Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208, 1216 (10th Cir. 2014) (alteration omitted) (quoting

Wallace, 549 U.S. at 391).

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that he might have a cause of action.”44 Plaintiff fails to plead non-conclusory facts

demonstrating that Defendants used fraudulent means to hide this legal authority from Plaintiff.

And, for the reasons discussed above, Plaintiff’s understanding of Kansas’ double jeopardy

statute is incorrect; therefore, Defendants could not have fraudulently concealed from him that

his second conviction was a double jeopardy violation.

Finally, Plaintiff argues that he continues to suffer injury as a result of his wrongful

conviction—he remains on the “Don’t Fly List,” and is still on parole.45 But the existence of

injury is not the basis for accrual under federal law. Plaintiff knew of his conviction, and even

raised a double jeopardy argument in his post-conviction challenges to the 1997 conviction and

sentence more than 20 years ago. Therefore, his claims are barred by the statute of limitations.

C.

Heck v. Humphrey

Although Defendants did not raise it, under § 1915(e)(2)(B)(ii), the Court addresses

whether Heck v. Humphrey bars Plaintiffs §§ 1983 and 1985 claims.46 In Heck, the Supreme

Court held that:

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,

a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance

of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages

bearing that relationship to a conviction or sentence that has not

been so invalidated is not cognizable under § 1983.47

44 Fulghum v. Embarq Corp., 785 F.3d 395,414 n.21 (10th Cir. 2015) (alteration in original) (quoting

Ballen v. Prudential Bache Sec., Inc., 23 F.3d 335, 337 (10th Cir. 1994)).

45 Doc. 95-1 at 6.

46 512 U.S. 477 (1994).

47 Id. at 486-87 (emphasis omitted).

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Here, Plaintiff challenges the constitutionality of his conviction in the 1997 case and argues that

the judge, prosecutor, and public defender conspired to deprive him of his constitutional rights

when he was recharged and pled guilty in 1997. Plaintiff claims Defendants knew or should

have known that he was impliedly acquitted of the charges in the 1997 case yet they failed to

stop that prosecution.

As the Tenth Circuit has explained, “[t]he purpose behind Heck is to prevent litigants

from using a § 1983 action, with its more lenient pleading rules, to challenge their conviction or

sentence without complying with the more stringent exhaustion requirements for habeas

actions.”48 Here, a judgment in favor of Plaintiff “would necessarily imply the invalidity of his

conviction or sentence.”49 As the facts alleged in Plaintiffs pleadings make clear, his 1997

conviction has not been reversed on direct appeal, expunged, or declared invalid in state or

federal court. But if Plaintiff s claim is true that his second prosecution was unconstitutional,

then his 1997 conviction was invalid. Such claims are squarely barred by Heck v. Humphrey.50

D.

Individual Defenses

Finally, Defendants individually raise several defenses that demonstrate Plaintiff s failure

to state a claim against them. The Court agrees that these defenses are well taken and concludes

that Plaintiff cannot state plausible claims for relief.

1.

Judge Hebert

As to Judge Hebert, judicial immunity bars Plaintiff s claims. “[J]udicial immunity is an

immunity from suit, not just from ultimate assessment of damages.”51 Furthermore, judicial

48 Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted).

49 See Heck, 512 U.S. at 487.

50 Heckhas been extended to conspiracy claims under § 1985. See Archilta v. Oklahoma, 123 F. App’x

852, 856 (10th Cir. 2005).

51 Mireles v. Waco, 502U.S.9, 11 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

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immunity cannot be overcome by allegations of bad faith or malice.52 Rather, judicial immunity

is only overcome in the following two sets of circumstances: (1) “a judge is not immune from

liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity,” and (2) “a

judge is not immune for actions, though judicial in nature, taken in the complete absence of all

jurisdiction.”53 In this case, all of Plaintiff s allegations against Judge Hebert relate to actions

taken in his judicial capacity. There are no allegations that would trigger application of either

exception to absolute judicial immunity. Accordingly, Judge Hebert is entitled to absolute

judicial immunity.

2.

McKenna

McKenna asserts prosecutorial immunity. “It is well established that prosecutors are

absolutely immune from suit under section 1983 concerning activities ‘intimately associated with

the judicial.. . process,’ such as initiating and pursuing criminal prosecutions.”54 In this case,

Plaintiffs allegations relate to the initiation and pursuit of criminal charges against him. In

addition, to the extent that Plaintiffs claims and allegations relate to discovery abuses, Brady

violations, or withholding evidence, “[a] prosecutor’s withholding of evidence is an action

‘intimately associated’ with the judicial process.”55 Because Plaintiffs allegations and claims

against McKenna are all based on activities associated with the judicial process, McKenna is

entitled to absolute prosecutorial immunity.

52 Id. (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).

53 Id. at 11-12 (citations omitted).

54 Pfeifferv. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir. 1991) (quoting Imbler v. Pachtman,

424 U.S. 409,430-31 (1976)).

55 Powell v. Spear, 6 F. App’x 739, 741 (10th Cir. 2001) (quoting Imbler, 424 U.S. at 430).

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3.

DeZago

DeZago was Plaintiffs public defender. “[I]t is well established that neither private

attorneys nor public defenders act under color of state law for purposes of § 1983 when

performing their traditional functions as counsel to a criminal defendant.”56 Thus, Plaintiff fails

to state a claim against DeZago under the civil rights statutes.

4.

The County

Finally, although none of the motions address the purported individual-capacity claim

against the County, the Court must address it under § 1915(e)(2). The Supreme Court has made

clear that “a local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents.”57 “[I]n other words, a municipality cannot be held liable under § 1983 on

a respondeat superior theory.”58 Instead, “the government as an entity” may be held liable only

“when execution of a government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.”59

To plead municipal liability, a plaintiff must allege “the existence of a municipal policy or

custom, and ... that there is a direct causal link between the policy or custom and the injury

alleged.”60 In short, a plaintiff must adequately allege “(1) that a municipal employee committed

56 Dunn v. Harper Cnty., 520 F. App’x 723, 725—26 (10th Cir. 2013) (citations omitted).

57 Monell v. Dep’t ofSoc. Servs., 436 U.S. 658, 694 (1978).

58 Id. at 691; see also Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996) (“A municipality may not be held

liable under 42 U.S.C. § 1983 simply because it employs a person who violated a plaintiffs federally protected

rights.” (citing Monell, 436 U.S. at 694)).

59 Monell, 436 U.S. at 694.

60 Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting Hinton v City ofElwood, 997

F.2d 774, 782 (10th Cir. 1993)).

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a constitutional violation, and (2) that a municipal policy or custom was the moving force behind

the constitutional deprivation.”61

Plaintiff purports to allege claims based on the County’s failure to train and supervise its

employees. But the County cannot be held liable solely because it employed agents that caused

Plaintiffs injury. And, Plaintiff has failed to sufficiently allege that a County employee

committed a constitutional violation for the reasons described above. Accordingly, Plaintiff s

claims against the County must be dismissed.

IV.

Plaintiffs Rule 60(b)(3) Motion

In his motion invoking Rule 60(b)(3), Plaintiff asserts that Defendants have committed a

fraud on the Court, and requests that the Court deem their motions to dismiss as “inadmissible.”

Under Rule 60(b)(3), “the court may relieve a party or its legal representative from a final

judgment, order, or proceeding for ... fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party.” Such a motion must be made “no more

than a year after the entry of the judgment or order or the date of the proceeding.”62 DeZago

moves to dismiss Plaintiffs fraud claims for lack of subject matter jurisdiction and for failure to

state a claim.

Plaintiffs motion is denied for several reasons. First, Plaintiff s motion is untimely.

Additionally, for the reasons described above, Plaintiff has failed to demonstrate fraud. He

generally alleges that Defendants conspired with one another to keep legal authority from him

that should have barred his 1997 conviction and sentence. But there are no non-conclusory

allegations to support this assertion. And, for the reasons explained earlier in this Order,

61 Myers v. Okla. Cnty. Bd. of Cnty. Commr’s, 151 F.3d 1313, 1316 (10th Cir. 1998) (citing Monell, 436

U.S. at 694).

62 Fed. R. Civ. P. 60(c)(1).

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Defendants had no reason to advise him of such inapplicable authority. Finally, there is no

authority for prohibiting Defendants from filing motions to dismiss. Defendants were well

within their rights under the rules to do so.63 And under Rule 12(h) and § 1915, the Court is

required to dismiss on its own motion if it is obvious that the Court lacks jurisdiction, an

immunity defense applies, or a plaintiff fails to state a claim. As described in this Order, all

three bases for dismissal exist here.

Accordingly, Plaintiff’s motion asserting that the Defendants committed a fraud on the

Court and asking the Court to deem the motions to dismiss inadmissible under Rule 60(b)(3) is

denied.

V.

Leave to Amend

While the Court recognizes the general rule that pro se parties generally should be

allowed leave to amend, it may appropriately dismiss a claim without prejudice “where it is

obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give

him an opportunity to amend.”64 “[T]he district court should allow a plaintiff an opportunity to

cure technical errors or otherwise amend the complaint when doing so would yield a meritorious

claim.”65 Here, Plaintiff does not move to amend, nor does he suggest changes that would cure

the errors identified in this opinion. Plaintiff has amended twice already, and the Court

determines for the many reasons explained throughout this opinion that Plaintiff cannot prevail

on the claims asserted in the Second Amended Complaint, and it would be futile to allow him

another chance to amend.

63 See generally Fed. R. Civ. P. 12.

64 Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (alteration omitted) (quoting

Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010)).

65 Curley v. Perry, 246 F.3d 1278,1284 (10th Cir. 2001).

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IT IS THEREFORE ORDERED BY THE COURT that Defendant Ralph DeZago’s

Motions to Dismiss (Docs. 77 and 84); Plaintiff Moore’s Request for Dismissal of Miscellaneous

Items (Doc. 81); Defendant Daniel Hebert’s Motion to Dismiss (Doc. 88); and Defendant Julie

McKenna’s Motion to Dismiss (Doc. 92) are granted.

IT IS FURTHER ORDERED that Plaintiffs motion, “Plaintiff Moore Charges All

Defendants with Committing Fraud Upon the Court” (Doc. 69) is denied.

IT IS FURTHER ORDERED that the parties’ Motions to Strike (Docs. 104, 106, and

108) are denied, and Plaintiffs Motion for Leave to File a Surreply (Doc. 110) is granted.

This case is dismissed in its entirety and the Clerk is directed to prepare a judgment in

favor of Defendants.

IT IS SO ORDERED.

Dated: June 11, 2024

S/ Julie A. Robinson

JULIE A. ROBINSON

UNITED STATES DISTRICT JUDGE

Am.-}

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