Brown v. Kansas, State of - Document 4
ORDER ENTERED: Petitioner is granted twenty (20) days (1) to submit EITHER an executed form motion for seeking leave to proceed in forma pauperis OR the $5.00 district court filing fee; AND (2) to submit a petition on a court approved form nami ng a proper respondent; AND (3) to show cause why this action should not be summarily dismissed without prejudice based upon petitioner's plain failure to first exhaust state court remedies. Petitioner's motion 2 to dismiss and request for Franks hearing is denied without prejudice; and petitioner's motion 3 to file complaint and charges is denied. Signed by Senior District Judge Sam A. Crow on 2/8/2012. (Mailed to pro se party James L. Brown, Sr. by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES L. BROWN, SR.,
CASE NO. 12-3001-SAC
STATE OF KANSAS,
O R D E R
This matter comes before the court on a pro se pleading titled
as a “Motion to File a Complaint and Request a Hearing.” Petitioner
appears to be a prisoner confined in the Sedgwick County Adult
Detention Center who is seeking a federal investigation of his claim
of intentional false misrepresentation and error in the affidavit
detectives submitted to the state district court for a warrant for
Because it appears petitioner is a pretrial detainee, the court
liberally construes the pro se pleading as one seeking habeas corpus
relief under 28 U.S.C. § 2241.
See Walck v. Edmondson, 472 F.3d
submitted a motion for leave to proceed in forma pauperis without
prepayment of the district court filing fee, pursuant to 28 U.S.C.
The court grants petitioner additional time to comply with
one of these statutory requirements for satisfying the district
court filing fee.
The court also grants petitioner additional time to submit his
9.1(a)(habeas petitioner must use court approved form), naming the
Sedgwick County Sheriff as the proper respondent, see 28 U.S.C. §
Petitioner is advised, however, that full exhaustion of state
court remedies is generally required prior to seeking such relief in
See generally Wilson v. Jones, 430 F.3d 1113, 1117
petitioner seeking relief under § 2241 is required to first exhaust
available state remedies). See also Capps v. Sullivan, 13 F.3d 350,
otherwise prevent a prosecution is normally not attainable by way of
pretrial habeas corpus.”)(internal quotations omitted).
plain reading of petitioner’s pro se material suggests nothing to
indicate petitioner has pursued and exhausted state court remedies,
the court further directs petitioner to show cause why this matter
should not be summarily dismissed without prejudice. The failure to
comply in a timely manner with any of these requirements may result
in this matter being dismissed without prejudice without further
Hearing,” in which petitioner seeks dismissal of his state criminal
complaint and to challenge the validity of the state warrant for his
arrest, is denied without prejudice.
Such relief must first be
pursued and exhausted in petitioner’s criminal proceeding and state
Petitioner’s “Motion to File Complaint and [Criminal] Charges”
against petitioner’s defense counsel attorney and the state district
Petitioner has no federal right to purse the criminal prosecution of
See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)(“a
private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another”); accord Doyle v. Oklahoma
Bar Ass'n, 998 F.2d 1559, 1567 (10th Cir.1993).
IT IS THEREFORE ORDERED that petitioner is granted twenty (20)
(1) to submit EITHER an executed form motion for seeking leave
to proceed in forma pauperis, OR the $5.00 district court
filing fee; AND
(2) to submit a petition on a court approved form, naming a
proper respondent; AND
(3) to show cause why this action should not be summarily
dismissed without prejudice based upon petitioner’s plain
failure to first exhaust state court remedies.
IT IS FURTHER ORDERED that petitioner’s Motion to Dismiss and
Request for Franks Hearing
(Doc. 2) is denied without prejudice,
and that petitioner’s Motion to File Complaint and Charges (Doc. 3)
The clerk’s office is to provide petitioner with court approved
forms for filing under 28 U.S.C. § 1915 and 28 U.S.C. § 2241.
IT IS SO ORDERED.
This 8th day of February 2012 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge