Jensen (ID 2100211417) v. Shepack

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSHUA JENSEN,
Plaintiff,
v. 	CASE NO. 25-3213-JWL
JOE SHEPACK,
Defendant.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. 	Plaintiff is
incarcerated at the Lansing Correctional Facility in Lansing, Kansas (“LCF”). The Court granted
Plaintiff leave to proceed in forma pauperis. 	On October 3, 2025, the Court entered a
Memorandum and Order to Show Cause (Doc. 4) (“MOSC”) granting Plaintiff until November 3,
2025, in which to respond and show good cause why this matter should not be dismissed for the
reasons set forth in the MOSC.
Plaintiff has failed to respond to the MOSC by the Court’s deadline. The Court’s MOSC
was mailed to Plaintiff at his address of record at LCF. The mail was returned, noting that Plaintiff
refused delivery of the MOSC. 	(Doc. 6.) 	Federal Rule of Civil Procedure 77(d) provides that
orders are served according to Rule 5(b). Fed. R. Civ. P. 77(d). Rule 5(b) provides that a paper is
served by “mailing it to the person’s last known address—in which event service is complete upon
mailing.” Fed. R. Civ. P. 5(b)(2)(C); see also Elrod v. Swanson, 478 F. Supp. 2d 1252, 1260 (D.
Kan. 2007) (finding that Rule 5(b)(2)(C) was complied with and stating that the court’s
administrative procedures provide that pro se filers will receive orders of the court by first class
mail, and rejecting request by prisoner to receive court orders by certified mail).
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Plaintiff names his state defense attorney as the sole defendant and alleges ineffective
assistance of counsel. (Doc. 1, at 2.) Plaintiff alleges that Defendant Shepack provided ineffective
assistance while representing Plaintiff in his state criminal proceedings. Id. Plaintiff alleges that
Shepack failed to raise all available defenses, failed to file all available motions, failed to seek
mental health or drug treatment for Plaintiff., and failed to seek graduated sanctions or to eliminate
court costs and fines. 	Id. 	Plaintiff seeks damages in the amount of $200 per day “while under
State of Kansas control.” Id. at 5.
The Court found in the MOSC that Plaintiff has not shown that his state court defense
attorney was acting under color of state law as required under § 1983. See Polk Cty. v. Dodson,
454 U.S. 312, 318–19, 321–23 (1981) (assigned public defender is ordinarily not considered a state
actor because their conduct as legal advocates is controlled by professional standards independent
of the administrative direction of a supervisor); see also Vermont v. Brillon, 556 U.S. 81, 91
(2009); Dunn v. Harper County, 520 Fed. Appx. 723, 725-26, 2013 WL 1363797 at *2 (10th Cir.
Apr. 5, 2013) (“[I]t is well established that neither private attorneys nor public defenders act under
color of state law for purposes of § 1983 when performing traditional functions as counsel to a
criminal defendant.” (citations omitted)). A criminal defense attorney does not act under color of
state even when the representation was inadequate. Briscoe v. LaHue, 460 U.S. 325, 330 n.6
(1983). The Court also found that any argument that the state defense attorney is a state actor by
virtue of being an officer of the court, has been rejected by the Tenth Circuit in Armajo v. Wyoming
Public Defender, 2024 WL 470547, at *3 (10th Cir. 2024) (unpublished).
The Court also found that even if Plaintiff believes he has a claim for legal malpractice,
such a claim would be a state law claim. “[A] legal malpractice claim is a state-law tort claim, not
a § 1983 claim.” Wallin v. Arapahoe Cty. Detention Facility, 244 F. App’x 214, 218 (10th Cir.
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2007) (unpublished) (citation omitted). 	Furthermore, before Plaintiff may proceed in a federal
civil action for monetary damages based upon an invalid conviction or sentence, he must show
that his conviction or sentence has been overturned, reversed, or otherwise called into question.
Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff has not alleged that his conviction or sentence
has been invalidated.
The MOSC provides that “[f]ailure to respond by the deadline may result in dismissal of
this matter without further notice for failure to state a claim.” (Doc. 4, at 5.) Plaintiff has failed
to respond by the Court’s deadline and has failed to show good cause why this matter should not
be dismissed for failure to state a claim.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for
failure to state a claim.
IT IS SO ORDERED.
Dated November 5, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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