Hartz order to show cause

1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

CORNELIUS HARTZ,

Plaintiff,

v. CASE NO. 15-3068-SAC-DJW

DARREN CAMPBELL, Law Enforcement

Officer/Security Guard,

et al.,

Defendants.

ORDER TO SHOW CAUSE

Plaintiff 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 for failure to state a

claim.

I. NATURE OF THE MATTER BEFORE THE COURT

Plaintiff filed this civil rights complaint under 42 U.S.C.

§ 1983 while he was an inmate at the Shawnee County Jail in

Topeka, Kansas.1 As background facts, Mr. Hartz alleges the

following. On May 22, 2014, he was waiting in line at 1:40 a.m.

at Walgreens to purchase a bottled drink. Off-duty Topeka

Police Department (“TPD”) Officer Darren Campbell was in uniform

1 Plaintiff has also filed a civil rights complaint that is currently

pending in which he claims denial of medical care during his confinement at

the Shawnee County Jail. See Hartz v. Dr. Sale, Case No. 14-3237-SAC.

Defendants were required to file an Answer, and filed a Motion for Summary

Judgment that is currently pending. Plaintiff has filed a change of address

in both cases.

Case 5:15-cv-03068-SAC-DJW Document 8 Filed 03/25/16 of 12

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and working as a security officer at the store. Campbell asked

plaintiff if he had been stealing in the store a few days

earlier, which plaintiff denied.2 Campbell demanded that Hartz

accompany him to the manager’s office. While they were walking

toward the office, plaintiff expressed concern about his bicycle

that was unchained outside. Campbell attempted to handcuff and

arrest Hartz and slammed Hartz against the counter and onto the

floor. Mr. Hartz then stood with his hands in the air.

Campbell drew his tazer, pointed it at plaintiff’s face, and

demanded that he get down. Hartz became “fearful of his life”

and ran toward the front door but encountered Campbell with his

tazer. In fear of being tazed, plaintiff jumped through the

pharmacy drive-through window. On-duty law enforcement officers

arrived and apprehended plaintiff who was hiding in nearby

bushes. Hartz was taken into custody pursuant to a city bench

warrant and charged with felony theft, battery on a law

enforcement officer, criminal damage to property and

obstruction.

On May 30, 2014, while plaintiff was in the Shawnee County

Jail, he was assaulted. As a result he received “a new fracture

to the left side of his face” and his “preexisting” facial

2 The Arrest Report and Supplemental Report exhibited by plaintiff,

indicates that a theft occurred at the store on May 20, 2014; Campbell viewed

the videotape of the theft the next day; and on May 22, 2014, he was advised

by the store clerk that had reported the theft to the store manager that the

suspect had just come back into the store. (Doc. 1) at 29, 31.


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injury was reinjured. He “also suffered from mental and

emotional abuse” that has not been treated. Plaintiff cites

Hartz v. Sale, et al., Case No. 14-3237 (D.Kan., filed Dec. 29,

2014).3

Officer Campbell used an in-store video of the theft as the

basis for probable cause. Plaintiff believed that this video

would be exculpatory. His trial was continued due to the

State’s delay in producing this video. Plaintiff’s trial began

on December 16, 2014. The obstruction charge was dismissed.

Plaintiff was acquitted of felony theft and criminal damage to

property; and the battery on an LEO was amended to simple

battery, a class B misdemeanor. On January 23, 2015, plaintiff

was sentenced to six months in jail and credited with time spent

in jail on this offense.4 On January 29, 2015, plaintiff filed a

Notice of Appeal. He was denied bond.

As Count I of his complaint, plaintiff claims that his

Fourth Amendment rights were violated and that Officer Campbell

deprived him of his “right privileges an (sic) immunities” and

right to be secure against unreasonable searches and seizures.

In support, he alleges that Campbell, while working as an off-

duty security officer, arrested and detained plaintiff to answer

3 Plaintiff’s earlier civil rights action is based upon this incident.

Plaintiff alleged that he was assaulted by other inmates.

4 Plaintiff was also held in jail for probation violations based on his

illegal activity.


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for a crime on what Campbell considered probable cause to

believe plaintiff had committed misdemeanor theft. As Count II,

plaintiff claims that his Fourteenth Amendment rights to due

process were violated and he was denied equal protection of the

law by District Attorney Joshua Smith for failing to timely

disclose the “potentially exculpatory” video evidence. Under

Count III, plaintiff cites state statutes regarding arrest and

repeats his claim that Officer Campbell arrested and detained

plaintiff on what Campbell considered probable cause. He then

repeats that his “rights, privileges and immunities” were

violated. Under Counts I and II, he alleges wrongful and

warrantless arrest, battery, assault, attempted use of excessive

force, and false imprisonment.

For relief, plaintiff requests “full compensation for past

and future medical expenses of 300,000.00, compensatory damages

for mental and emotional injury of 350,000.00, an (sic) excess

of 75,000.00 for pain and suffering and punitive damages of 5

million.”

II. FILING FEE

Plaintiff has filed a Motion for Leave to Proceed without

Prepayment of Fees (Doc. 2) and has attached inmate account

information in support as statutorily mandated. Having

considered the plaintiff’s financial records, the court finds no

initial partial filing fee may be imposed at this time due to


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plaintiff’s limited resources, and grants the motion. Plaintiff

is reminded that he remains obligated to pay the $350.00

district court filing fee by way of payments collected from his

inmate trust fund account when funds become available as

authorized by 28 U.S.C. § 1915(b)(2).

III. STANDARDS

Because Mr. Hartz 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). “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, 48-49

(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


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claim of entitlement to relief,” dismissal is appropriate. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

Furthermore, 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, at Arapahoe County Justice Center, 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 plaintiff’s behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).


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The State of Kansas and its agencies, such as the County

and the Police Department, are absolutely immune to suit for

money damages under the Eleventh Amendment. Puerto Rico

Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S.

139, 146 (1993); Cory v. White, 457 U.S. 85, 90-91 (1982);

Trujillo v. Williams, 465 F.3d 1210, 1214 n.1 (10th Cir.

2006)(citing ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1187

(10th Cir. 1998)(“[A] citizen’s suit against a state agency is

barred by the Eleventh Amendment just as surely as if the suit

had named the state itself.)). To impose § 1983 liability on

the County for acts taken by its employee, plaintiff must show

that the employee committed a constitutional violation and that

a county policy or custom was “the moving force” behind the

constitutional violation. Myers v. Oklahoma County Bd. of

County Comm’rs, 151 F.3d 1313, 1318 (10th Cir. 1998)(citing see

Monell v. Department of Social Services, 436 U.S. 658, 695

(1978)). Typically, judges and prosecutors also enjoy absolute

immunity. See Stein v. Disciplinary Bd. of Supreme Court of New

Mexico, 520 F.3d 1183, 1195 (10th Cir. 2008)(citing Mireles v.

Waco, 502 U.S. 9, 9–10 (1991)). “The Supreme Court of the

United States has long held that judges are generally immune

from suits for money damages.” Id. at 1195. Prosecutors are

also immune from civil liability for damages for “acts

undertaken by a prosecutor in preparing for the initiation of


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judicial proceedings or for trial, and which occur in the course

of his role as an advocate for the State.” Id. at 1193 (citing

Buckley v. Fitzsimmons, 509 U.S. 259, 273 209 (1993); see, e.g.,

Imbler v. Pachtman, 424 U.S. 409, 431, (1976)). “Absolute

immunity defeats a suit at the outset, so long as the official’s

actions were within the scope of the immunity.” Id. at 1189.

Under 42 U.S.C. § 1997e(e), no federal civil action “may be

brought by a prisoner . . . for mental or emotional injury

suffered while in custody without a prior showing of physical

injury or the commission of a sexual act.” Punitive damages are

available in a § 1983 lawsuit. However, they “are available

only for conduct which is ‘shown to be motivated by evil motive

or intent, or when it involves reckless or callous indifference

to the federally protected rights of others.’” Smith v. Wade,

461 U.S. 30, 56 (1983)); Jolivet v. Deland, 966 F.2d 573, 577

(10th Cir. 1992).

IV. DISCUSSION

This action is subject to dismissal for four main reasons.

First, it must be dismissed as against defendants State of

Kansas, Topeka Police Department, and Shawnee County because

these entities are not “person(s)” suable for money damages

under § 1983. There is no indication that the State has

consented to this lawsuit, and plaintiff alleges no facts to

show that his arrest was the result of an unconstitutional


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county policy or practice. It follows that plaintiff states no

claim against the State or the named municipal entities.

Monell, 436 U.S. 658, 690 (1978); Smedley v. Corrections Corp.

of America, 175 Fed.Appx. 943, 946 (10th Cir. 2005). This

action is also subject to dismissal as against Judge David B.

Debenham and District Attorney Joshua Smith because these

defendants are immune to suit for money damages. See 28 U.S.C.

§ 1915(e)(2)(B)(iii); 28 U.S.C. §1915A(b)(2).

Plaintiff’s claims against the only remaining defendant,

Officer Campbell, are subject to dismissal because, even

accepting plaintiff’s allegations as true, they do not raise a

claim of entitlement to relief. Plaintiff’s allegations of

fact, as opposed to his conclusory statements, do not suggest

any unconstitutional conduct on the part Officer Campbell during

plaintiff’s questioning and arrest.

Similarly, all of plaintiff’s assertions that his

constitutional rights were violated are nothing more than

conclusory statements that are not supported by the facts

alleged in the complaint. As noted, a plaintiff’s obligation to

provide his grounds for relief requires “more than labels and

conclusions.” Plaintiff’s assertions of Fourth Amendment

violations including unlawful and warrantless arrest, denial of


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due process,5 denial of equal protection, battery, assault,

attempted use of excessive force, and false imprisonment are

nothing more than conclusory statements. Plaintiff provides

many facts surrounding his arrest and subsequent trial in his

complaint and attachments, but they do not evince the violation

of any of the asserted federal constitutional rights.

Finally, the only relief requested in the complaint is

money damages, and the damages requested are either barred or

completely devoid of factual support. Plaintiff’s requests for

compensatory damages for past and future medical expenses, for

mental and emotional injury and for pain and suffering are

subject to dismissal as barred by 42 U.S.C. § 1997e(e).

Plaintiff has not described any physical injury that was caused

by the alleged deprivations of his constitutional rights. His

allegations of “physical, mental and emotional abuse” are

completely conclusory and thus insufficient to demonstrate

physical injury. Furthermore, plaintiff does not describe any

of the claimed medical expenses and explain why defendants may

be held liable for them. Likewise, plaintiff’s request for

millions of dollars in punitive damages is not supported by any

factual allegations whatsoever. Accordingly, the complaint is

5 Any challenge that plaintiff has to his conviction may only be raised

in a habeas corpus petition and may not be litigated in this civil rights

complaint.


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subject to dismissal for failure to state a plausible claim for

relief.

The court concludes that this action is subject to

dismissal in its entirety for failure to state a claim.

Plaintiff is required to show good cause why his complaint

should not be dismissed for the reasons stated herein. If

plaintiff does not show good cause within the prescribed time,

this action may be dismissed without further notice.

The court has considered plaintiff’s “Motion for Request

for Relief” (Doc. 3). Plaintiff simply repeats a few of his

claims in this filing and asks the Court to grant resolution in

his favor. This is an unnecessary motion that seeks the same

relief as already requested the complaint. No legal basis is

suggested for the court to grant relief at this time.

IT IS THEREFORE ORDERED that plaintiff’s Motion to Proceed

without Prepayment of Fees (Doc. 2) is granted. Plaintiff is

hereby assessed the filing fee of $350.00 to be paid through

payments automatically deducted from his inmate trust fund

account as authorized by 28 U.S.C. § 1915(b)(2).

IT IS FURTHER ORDERED that plaintiff is granted twenty (20)

days in which to show good cause, in writing, to the Honorable

Sam A. Crow, United States District Judge, why this action

should not be dismissed for the reasons stated herein.


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IT IS FURTHER ORDERED that plaintiff’s “Motion for Request

for Relief” (Doc. 3) is denied, without prejudice.

IT IS SO ORDERED.

Dated in Kansas City, Kansas on this 25th day of March,

2016.

s/ David J. Waxse

David J. Waxse

U. S. Magistrate Judge


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Hartz order to show cause

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Transcript of Hartz order to show cause