Opinion
Case No. 03-1040-WEB
February 27, 2003.
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE
The Court now considers the application for leave to proceed in forma pauperis filed by pro-se Plaintiff Jay Dee Portley, Jr. (Doc. 2). The Court may authorize the commencement and prosecution of a case without prepayment of fees, but this is a privilege, not a right. 28 U.S.C. § 1915(a)(1); Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996). The Court, in fact, " shall dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(1)(B)(i)-(iii) (emphasis supplied). In conducting its analysis, the Court is mindful that pro se complaints must be construed liberally. Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).
I. THE COMPLAINT AND AMENDED COMPLAINT
Plaintiff's allegations are difficult to follow, but construed liberally Plaintiff alleges in his Complaint that he has failed to comply with a traffic citation, and that his driver's license has been administratively suspended for his failure to comply. He alleges that he must pay both a $50.00 driver's license reinstatement fee to the State of Kansas under K.S.A. § 8-2110, and a $15.00 "add on" to the City of Wichita under the City of Wichita Code § 1.04.120. He further alleges that the $15.00 "add on" has been waived or forgiven "in a state class action."
Plaintiff alleges in the Complaint that "On or about July 28, 2002 and order was enter into that all fines and court costs had been forgiven by Wichita in a state class action." In the Amended Complaint, he calls this a "one time policy" dated July 28, 2002, "in a state class action and final order. . . ."
The Plaintiff names as defendants in the Complaint both the City of Wichita and "Phil Kline . . . a Kansas Citizen, employed by the State of Kansas, as (Attorney General of Kansas) and is enforcement official over all state law enforced by Kansas." Plaintiff claims violations of his "rights, privileges and immunities secured under the Fourth, Fifth, Sixth, and Fourteenth Amendment of the United States Constitution and Title 42 U.S.C. § 1983 and 1988." He seeks injunctive and declaratory relief against the City of Wichita, along with a judgment generally for "arbitrary damage awards" in an unspecified amount.
The Plaintiff has also filed an Amended Complaint, in which he adds the law firm of "Palmer, Lowry, Leatherman White, LLP" as a defendant. He now alleges that he owes the City of Wichita a fee of $ 195.00. He alleges that because of this fee he has not been able to restart his family business or seek new contracts. He requests, among other relief, monetary damages for loss of time, loss of business opportunity, and emotional and mental stress in excess of $75,000.
The firm is actually Palmer, Leatherman White, LLP.
• FRIVOLOUSNESS
As already noted, the Court must dismiss an in forma pauperis petition if it is frivolous. 28 U.S.C. § 1915(e)(1)(B)(i). An in forma pauperis complaint is frivolous if it lacks an arguable basis in fact or law. Denton v. Hernandez, 504 U.S. 25, 33-34 112 S.Ct. 1715, 118 L.Ed.2d 340, 350 (1992) ; Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995); Phillips v. Carey, 638 F.2d 207, 208 (10th Cir. 1981).
Allegations are factually frivolous if they "rise to the level of the irrational or the wholly incredible. . . ." Denton, 504 U.S. at 33, 118 L.Ed.2d at 350. It is not irrational or wholly incredible that Plaintiff has failed to appear for a traffic citation and now faces administrative suspension of his driver's license, reinstatement fees, and municipal fines. Under K.S.A. § 8-2110, failure to comply with a traffic citation may lead to an administrative suspension of a driver's license, and, unless certain exceptions apply, driving privileges are not reinstated without payment of a $50.00 fee. K.S.A. § 8-2110(a)-(c). This statute also provides that "[s]uch reinstatement fee shall be in addition to any fine . . . municipal court cost and other penalties." K.S.A. § 8-2110(c). Under the City of Wichita Code § 1.04.120, a person who fails to appear shall be punished by a fine of not more than $500.00.
The Plaintiff's allegations regarding causation and damages are factually frivolous, however. Even assuming that Plaintiff now faces reinstatement fees or municipal fines totaling $195.00, it is irrational to believe that the defendants have thereby caused him damages for loss of time, loss of business, and emotional and mental stress in excess of $75,000. Moreover, Plaintiff makes no allegations of harm at all against the law firm named in the Amended Complaint. In other words, Plaintiff has not alleged a factual basis, no matter how far fetched, in support of his belief that the law firm has somehow caused him damages. This also rises to the level of the irrational.
The Court is also satisfied that the Complaint and the Amended Complaint lack an arguable basis in law and are legally frivolous. Plaintiff cites 42 U.S.C. § 1983, but rather than providing Plaintiff with any rights, this section only provides a means for vindicating federal rights conferred elsewhere. Stenseng, 292 F.3d at 1225. Section 1983 applies only to deprivation of rights secured by the Constitution and laws of the United States, not violations of state or municipal law. See id. Section 1988 is simply a procedural statute which does not create an independent cause of action. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977).
Turning, then, to the constitutional rights identified by Plaintiff, the Fourth Amendment does not apply because Plaintiff does not allege a search or seizure. Plaintiff does offer vague and conclusory allegations regarding due process deprivations in Wichita's municipal courts, but he also states that he has not yet appeared on the failure to comply charge. An administrative suspension of Plaintiff's driver's license for failure to comply would not, by itself, raise due process concerns. See Meehan v. Kansas Dept. of Rev., 25 Kan. App. 2d 183, 187, 959 P.2d 940, 943 (1998) (rev. denied July 09, 1998) (citing Dixon v. Love, 431 U.S. 105, 115, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). If Plaintiff seeks due process under the Fifth, Sixth, and Fourteenth Amendments, he must first appear in court and receive the process due to him.
The Complaint states, e.g., "Plaintiff has not been sentenced to any misdemeanor for failure to comply pursuant to K.S.A. 8-2110 and Wichita's Ordinance No. 1.04.120. . . ." and "[P]laintiff presently have pending administrative fee and suspension of license where plaintiff has not been convicted of a misdemeanor or afforded a hearing for failure to comply." In the Amended Complaint, Plaintiff states he "has not been charged or convicted"and that his "license has and still is suspended. . . ."
Finally, if Plaintiff is indeed a member in a state class action against the City of Wichita, and if a judgment in that case has afforded him some relief, his remedy is with the court which entered the class action judgment. This Court will abstain from interfering with a state court in such a matter. See McKibben v. Chubb, 840 F.2d 1525, 1529 (10th Cir. 1988); Roberts v. Childs, 956 F. Supp. 923, 925 (D.Kan. 1997) (applying Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)).
• FAILURE TO STATE A CLAIM
A pro se petition is properly dismissed for failure to state a claim when it is obvious that the plaintiff cannot prevail on the facts alleged, and that it would be futile to provide an opportunity to amend. Stenseng, 292 F.3d at 1224. The factual allegations, and any reasonable inferences which might be drawn from them, must also be construed in the light most favorable to the plaintiff. Id. Even under this deferential standard , Plaintiff has not stated a claim.
Until Plaintiff appears in whatever court has jurisdiction over his traffic citations or failure to appear charges, if any, there is no justiciable issue. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1241 (10th Cir. 2001) (federal courts are prohibited from entertaining a case in which the issues are not yet ripe). Since this Court does not have jurisdiction, Plaintiff cannot prevail on the facts alleged. It would be futile to allow Plaintiff to amend again because his remedies, if they exist, lie elsewhere than federal court.
• IMMUNITY
Plaintiff names defendant Phil Kline in his capacity as the enforcer of the laws of the State of Kansas. Plaintiff specifically contends that the Attorney General's enforcement of K.S.A. § 8-2110 has somehow violated his rights. Because the Plaintiff has named the Attorney General in his official, prosecutorial function, the Attorney General has absolute immunity. See Meade v. Grubbs, 841 F.2d 1512, 1532 (10th Cir. 1988).
• DISMISSAL IS REQUIRED
The Court has determined that Plaintiff's pro se complaint and amended complaint are legally frivolous, fail to state a claim and, with regard to the Kansas Attorney General, seeks monetary relief against a defendant who is immune. Under 28 U.S.C. § 1915(e), therefore, the case must be dismissed as to all defendants.
• FILING RESTRICTIONS
As set out in the ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING CASE, AND IMPOSING FILING RESTRICTIONS, Case No. 02-1137-WEB, which is filed contemporaneously with this order, Plaintiff is under an injunction regarding further filings in this Court, subject to his written objections and the Court's ruling on any such objections. The Court further notes that the dismissal of the complaint in the instant case could "have a res judicata effect on frivolousness determinations for future in forma pauperis petitions." Denton, 504 U.S. at 34, 118 L.Ed.2d at 351.
IT IS THEREFORE ORDERED that the Application for Leave to File Action Without Payment of Fees, Costs or Security (Doc. 2) be and hereby is DENIED. The case is DISMISSED.
SO ORDERED.