Tillman v. Creighton

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES CO URT O F APPEALS
October 1, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

M ARSHALL A. TILLM AN,

Plaintiff-Appellant, No. 07-3165

v. (D. Kansas)
R OBER T A . C REIG H TO N , (D.C. No. 06-CV-3300-SAC)
Chairman, Commission on Judicial
Q ualification; STA TE O F
KA NSA S; LARNED STATE
HO SPITAL; ATTO RN EY
GEN ERAL O F KANSAS;
K A N SA S D EPA RTM EN T O F
CO RR ECTIONS,

Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges,

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

unanimously that oral argument would not materially assist the determination of

*
This order and judgment is not binding precedent except under the doctrines of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.
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G).

I. BACKGROUND

M arshall A. Tillman, a state prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28

U.S.C. § 1915A(b). For substantially the same reasons as given by the district

court, we affirm.

II. DISCUSSION

A. Standard of review

The district court dismissed M r. Tillman’s complaint pursuant to § 1915A , 1

but it did not cite a specific section of that statute in support of its dismissal. W e

read its decision as concluding that, as to three of his causes of action, M r.

Tillman failed to state claims upon which relief can be granted, see 28 U.S C. §

1915A(b)(1), and that, as to his final cause of action, M r. Tillman has sought

monetary relief against a defendant w ho is immune from such relief, 28 U.S.C. §

1915A(b)(2). Because dismissals for failure to state a claim and for seeking

1
Section 1915A(b) provides
On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

28 U.S.C. § 1915A(b).

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monetary relief from a defendant who is immune are legal questions, we review

them de novo. See M cBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).

Recent Supreme Court precedent dictates that our review of dismissals for

failure to state a claim is “‘for plausibility in the complaint.’” See Alvarado v.

KO B-TV, 493 F.3d 1210, No. 06-2001, 2007 W L 2019752, at *3 (10th Cir. July

13, 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1970 (2007)

(alternation omitted)). The complaint must be read in the light most favorable to

the plaintiff, and all well-pleaded, material allegations of fact must be taken as

true. See Estelle v. Gamble, 429 U.S. 97, 99 (1976). Of course, “[a] document

filed pro se is ‘to be liberally construed,’ . . . and ‘a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (quoting

Estelle, 429 U.S. at 106).

B. M erits

“To state a claim under section 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); Northington v. Jackson, 973 F.2d

1518, 1523 (10th Cir. 1992). M r. Tillman’s claims, as the district court stated,

“appear to encompass a number of events.” Rec doc. 3, at 1. He argues that (1)

the Kansas Commission of Judicial Qualifications erred when, on September 9,

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2004, it refused to reprimand the judicial officer against whom M r. Tillman had

filed a complaint in July 2004; (2) on April 16, 2003, the Larned State Hospital

produced a report by including another man’s name as an alias in the plaintiff’s

forensic evaluation; (3) the Kansas Department of Corrections wrongfully denied

his good time credits; and (4) the Attorney General sought the death penalty

against him without any assurance of the protection of his rights.

For substantially the same reasons as the district court, we affirm the

dismissal of M r. Tillman’s complaint. His first tw o claims are untimely. We

have previously held that Kansas’s two-year statute of limitations applies to §

1983 claims. See H am ilton v. City of Overland Park, 730 F.2d 613, 614 (10th

Cir. 1984). The statute can be tolled for inmates “imprisoned for a term less than

[their] natural life” if they do not have “access to the court for purposes of

bringing an action,” Kan. Stat. Ann. § 60-515(a). However, M r. Tillman neither

presents any facts tending to show that he lacked access to the courts nor argues

on appeal that the statute of limitations was incorrectly applied by the district

court or should have been tolled.

As to his third contention, to the extent M r. Tillman seeks recalculation of

good-time credits, his claim fails as a procedural matter. A petition for habeas

corpus – not a § 1983 suit – is the proper avenue for seeking such relief. See

Heck v. Humphrey, 512 U.S. 477, 481 (1994); Preiser v. Rodriguez, 411 U.S. 475,

490 (1973); Reed v. M cKune, 298 F.3d 946, 953 (10th Cir. 2002). Fourth and

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finally, the doctrine of prosecutorial immunity bars M r. Tillman’s assertions

regarding the filing of capital charges against him. “A prosecutor’s charging

decisions are absolutely immune from civil suit for monetary damages.” Becker

v. Kroll, Nos. 05-4070, -4096, __ F.3d __, 2007 W L 2056775, at *15 (10th Cir.

Jul, 19, 2007) (citing Hartman v. M oore, 126 S. Ct. 1695, 1704-05 (2006)).

III. CONCLUSION

Accordingly, we AFFIRM the district court’s dismissal of M r. Tillman’s §

1983 complaint. W e remind M r. Tillman of his continuing obligation to make

such payments until the entire fee has been paid in full. See 28 U.S.C. §

1915(b)(1)-(2).

Entered for the Court,

Robert H. Henry
United States Circuit Judge

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