Kelner v. Harvin et al

Filing 10

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 2 & 7 for leave to proceed in forma pauperis are incomplete, but are granted for the sole purpose of dismissing this action. This action is dismissed without prejudice for failure to state sufficient facts to support a cognizable federal constitutional claim. Signed by Senior District Judge Sam A. Crow on 4/25/2011. (Mailed to pro se party Sean P. Kelner by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SEAN P. KELNER,
Plaintiff,
v.

CASE NO.

10-3127-SAC

ED HARVIN,
et al.,
Defendants.
MEMORANDUM AND ORDER
Upon screening the complaint in this action, the court
entered an Order requiring that plaintiff submit a fully completed
motion and affidavit for leave to proceed in forma pauperis (IFP)
and to show cause why this action should not be dismissed for
failure to state a claim.
proceed

IFP

and

a

Plaintiff has filed a second motion to

Response.

Having

carefully

considered

plaintiff’s Response together with all materials filed, the court
finds as follows.
The court required plaintiff to submit a “fully completed
(IFP) motion and affidavit” setting forth all his assets.

While

the second motion filed by plaintiff in response states that he has
cash assets, he does not provide the amount of those assets on the
form as required.

The court finds that plaintiff has failed to

satisfy the filing fee prerequisites in this case and has failed to
comply

with

the

court’s

order

to

provide

complete

information to support his motion to proceed IFP.

financial

In its screening Order, the court found that the only
material facts alleged in the complaint by Mr. Kelner were that he
spent 190 days in the Ellis County Jail in 2009 for trial under the
Kansas Sexually Violent Predator Act (KSVPA), K.S.A. § 59-29a01 et
seq.; was housed in general population under the same conditions as
criminal inmates; was not able to seek release on bond, and was not
afforded the same treatment as already-committed Sexually Violent
Predators (SVPs).

In his Response, plaintiff does not allege a

single

fact

additional

to

support

his

claims

of

a

federal

constitutional violation, despite the court’s discussion of the
many facts he failed to allege to state such a claim.

Instead, he

simply disagrees with the court’s holding that his being housed in
a

jail

pending

hearing

under

the

KSVPA,

standing

alone,

is

insufficient to state a federal constitutional violation.
In plaintiff’s Response, he again argues that the “law is
clearly established that the constitutional rights of a person who
is civilly committed, or is being tried for civil commitment, are
violated if they are placed in any jail or penal facility.”

In

support of this argument, he mainly relies upon Lynch v. Baxley,
744 F.2d 1452, 1458-59 (11th Cir. 1984), a 1984 opinion from another
Circuit that this court is not bound to follow.

Moreover, the

circumstances in Lynch are not entirely analogous to those of Mr.
Kelner.

Lynch involved the “emergency detention of those who

threaten immediate and serious violence to themselves or others” in

2

the Alabama county jails.1

That court was concerned with “ensuring

the least restrictive means of holding people pending commitment
proceedings” that were not sexually violent predator proceedings.
The Alabama law pursuant to which the involuntary commitment
proceedings and emergency detentions in Lynch had been ordered was
not the same law as the KSVPA.

In sum, Lynch neither requires nor

convinces this court to hold that the detention in a county jail of
a person in Kansas awaiting trial as an SVP is a per se violation
of the U.S. Constitution.
In his complaint, Mr. Kelner argued that his detention
violated the KSVPA. He acknowledges in his Response that the KSVPA
actually allows for a person being tried thereunder to be held in
a county jail.

See K.S.A. § 59-29a05(d).

He now argues in his

Response that this provision of the KSVPA violates Lynch.

The

court reiterates that this allowance in the KSVPA does not violate
Lynch, which is distinguishable, and that even if it did, Lynch is
not binding upon this court.
The other federal case cited by plaintiff, in support of
his position is Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004). Even
if the decision in Blanas is properly interpreted by plaintiff,
that court’s decision was based upon provisions in the California
Penal Code that are not the same as the pertinent provisions in the

1

Lynch involved the “emergency detention provision of the Alabama
civil commitment statute, § 22-52-7,” which provided that no person would be
placed in jail under the act unless the person posed an immediate threat to
himself or others and no other facility was available to safely detain the
person. Id. at 1457. It also involved “desperate” jail conditions that were
worse than the state prisons and mental institutions.

3

KSVPA.

In any event, decisions of the Ninth Circuit Court of

Appeals are not binding upon this court.
This court finds more persuasive the reasoning and holdings
in cases like Atwood v. Vilsack, 338 F.Supp.2d 985, 997-98 (S.D.
Iowa 2004), based upon an SVP Act that is essentially the same as
the one in Kansas.

In Atwood, the court held that the detention of

a pretrial detainee in a county jail to await civil commitment
proceedings pursuant to the SVPA and the denial of bail2 to that
detainee, standing alone, did not evince a violation of due process
or other federal constitutional rights.

Id.; see also Merryfield

v. Kansas, 2009 WL 3125470 (D.Kan. Sept. 25, 2009)(unpublished,
cited for reasoning).

2
The Eighth Amendment does not grant an absolute right to bail.
Moreover, as the court in Atwood reasoned, the denial of bail in circumstances
evidencing mental abnormalities and dangerousness has been “routinely upheld.”
See id., (citing cases including e.g., Kansas v. Hendricks, 521 U.S. 346, 352
(1997)(permitting civil detention of people with “mental abnormality” that
rendered them likely to commit “predatory acts of sexual violence”); Vitek v.
Jones, 445 U.S. 480 (1980)(requiring mental illness and dangerousness as
conditions for nonrelease)). On the other hand, it is well-established that due
process requires the “nature and duration of commitment bear some reasonable
relation to the purpose for which the individual is committed.”
Jackson v.
Indiana, 406 U.S. 715, 738 (1972). Due process was satisfied in plaintiff’s case
because the determination of mental abnormality and dangerousness was made at the
outset of his detention. Pretrial detention of an SVP in Kansas is premised upon
a judge’s probable cause finding that the individual is a sexually violent
predator, meaning he suffers from a mental abnormality making it likely that he
will engage in predatory acts constituting sexually violent offenses, if not
confined in a secure facility.
This determination, “in turn, is reasonably
related to denying bail to the plaintiff pending a full-blown hearing.” See
Atwood, 338 F.Supp.2d at 998. The KSVPA provides the detainee an opportunity to
present evidence at the probable cause hearing that he is not dangerous or does
not suffer from a mental abnormality. See id. (citing Hendricks, 521 U.S. at 357
(civil commitment approved where detainee was given opportunity to challenge the
commitment and the “confinement takes place pursuant to proper procedures and
evidentiary standards”)). “Essentially the case law requires that there must be
an individual determination, whether called a bail hearing or not, before someone
is locked away.” Id. Such opportunity is provided under the Kansas statute, and
from a federal perspective, appears to comport with due process. See id.; see
also Atwood v. Vilsack, 725 N.W.2d 641 (Iowa 2006)(Neither Iowa state law nor
common law provides entitlement to bail while awaiting civil SVP proceedings.).

4

Plaintiff
establishes

appears

that

to

the

additionally

KSVPA

is

argue

that

Lynch

unconstitutional.

The

constitutionality of the KSVPA has been upheld against due process
and equal protection challenges by the Kansas Supreme Court. In re
Care & Treatment of Hay, 263 Kan. 822, 832-34, 953 P.2d 666 (1998);
Van Camp v. State, 240 P.3d 627, *1 (Kan.App. Oct. 22, 2010,
unpublished)(cited for reasoning).

The KSVPA was also thoroughly

examined and upheld as constitutional by the United States Supreme
Court.

Hendricks, 521 U.S. at 346; see also Kansas v. Crane, 534

U.S. 407, 409-10 (1997).

The KSVPA, as examined by the U.S.

Supreme Court, provided for the confinement of sexually violent
predators in a secure facility because they were dangerous to the
community.

Hendricks, 521 U.S. at 363-64.

The Supreme Court was

aware that at the time the SVPs in Kansas were held in a segregated
unit within the state prison system.

More recently, the U.S.

Supreme Court upheld a federal statute, under the Necessary and
Proper Clause, that allowed a district court to order the civil
commitment of a sexually dangerous federal prisoner beyond the date
the prisoner would otherwise be released.

United States v.

Comstock, ___U.S.___, 130 S.Ct. 1949 (May 17, 2010).

The “civilly

committed” person remained confined at a federal prison, and the
Court did not address that the prison as his place of confinement
was unconstitutional.
detention

under

state

Plaintiff complains of the legality of his
authority;

however,

he

has

failed

to

demonstrate that this detention was “contrary to . . . clearly
established Federal law, as determined by the Supreme Court of the
5

United States.”

See Williams v. Taylor, 529 U.S. 362, 404 (2000);

see also Allen v. Illinois, 478 U.S. 364, 373 (1986)(the fact that
sexually dangerous persons are housed with prisoners in need of
psychiatric treatment in a maximum-security facility does not
transform the State’s intent to treat into an intent to punish).
Plaintiff has not presented, and this court has not discovered, any
U.S. Supreme Court opinion or controlling Tenth Circuit opinion
holding that a person in Kansas for whom probable cause has been
found to be tried as a SVP cannot be held in a county jail during
trial under the KSVPA.
Plaintiff also claims in his Response that it is clearly
established

that

an

SVP

in

Kansas

is

entitled

to

the

same

protections as all civil committees in Kansas. In fact, the law is
to the contrary. See Burch v. Jordan, 2010 WL 5391569 (D.Kan. Dec.
22, 2010)(unpublished, cited for reasoning)(Persons committed under
the KSVPA are different from persons such as the plaintiff in
Youngberg3 who was civilly committed because of mental infirmities
and not based on an adjudication of sexually violent behavior that
posed a danger to others.

In that sense, the rights of persons

such as plaintiff, a KSVP, cannot be coextensive with civil
committees like the plaintiff in Youngberg.).

In Van Camp, the

Kansas Court of Appeals thoroughly considered the argument of an
SVP that he was similarly situated to all other civilly committed
patients based upon the wording in the separate and distinct

3

Youngberg v. Romeo, 457 U.S. 307 (1982).

6

statutes applicable to Mentally Ill Persons, and for Persons with
an Alcohol or Substance Abuse Problem.

That court found:

The Kansas Supreme Court has decided against Van
Camp's argument when it stated that “there exist
clear distinctions between this class [sexually
violent predators] and other classes which are not
similarly treated.” Hay, 263 Kan. at 833. The
United States Supreme Court also noted that the
Act was designed to deal with a different class of
offenders. “Although Kansas already had a statute
addressing the involuntary commitment of those
defined as ‘mentally ill,’ the legislature
determined
that
existing
civil
commitment
procedures were inadequate to confront the risks
presented by ‘sexually violent predators.’”
Kansas v. Hendricks, 521 U.S. 346, 350–51, 138
L.Ed.2d 501, 117 S.Ct. 2072 (1997).
Further, the Act itself notes the differences
between the classes of involuntarily committed
patients. See K.SA. 59–29a01. If Van Camp were
in the same class as all other civilly committed
patients in Kansas, it would not have been
necessary for the legislature to create a
different act to deal with sexually violent
predators and explicitly state that they are
subject
to
a
“separate
involuntary
civil
commitment process.” K.S.A. 59–29a01.
Further,
the
statutory
definitions
of
the
different classes of civilly committed patients
show that Van Camp's status is distinguishable
from other patients in Kansas. A sexually violent
predator is “any person who has been convicted of
or charged with a sexually violent offense and who
suffers from a mental abnormality or personality
disorder which makes the person likely to engage
in repeat acts of sexual violence.” K.S.A. 2009
Supp. 59–29a02(a).
In contrast, a mentally ill
person under the Care and Treatment Act for
Mentally Ill Persons is
“any person who is suffering from a
mental disorder which is manifested by a
clinically significant behavioral or
psychological syndrome or pattern and
associated with either a painful symptom
or an impairment in one or more
important areas of functioning, and
7

involving
substantial
behavioral,
psychological or biological dysfunction,
to the extent that the person is in need
of treatment.” K.S.A. 59–2946(e).
The Care and Treatment Act for Persons with an
Alcohol or Substance Abuse Problem deals with a
person who “(1) Lacks self-control as to the use
of alcoholic beverages or any substance as defined
in subsection (k); or (2) uses alcoholic beverages
or any substance as defined in subsection (k) to
the extent that the person's health may be
substantially impaired or endangered without
treatment.”
K.S.A.
59–29b46(f).
The
very
definition of sexually violent predator shows that
Van Camp is in a different class from mentally ill
persons or persons with substance or alcohol abuse
issues. See Hay, 263 Kan. at 833.
Finally, Van Camp ignores a key distinction
between himself and those committed under the Care
and Treatment Act for Mentally Ill Persons. Those
committed under that Act have not necessarily been
convicted of a crime. See K.S.A. 59–2946(f). . .
. As a sexually violent predator, however, Van
Camp has been found guilty of a sexually violent
crime. See K.S.A.2009 Supp. 59–29a02(a).
Based on the differences between sexually violent
predators and other civilly committed patients in
Kansas, Van Camp has not met his burden of proving
dissimilar treatment for similarly situated
people.
See Salas, 289 at 250–51.
Therefore,
equal protection rights are not implicated. See
Hodges, 288 Kan. at 72.
Van Camp, 240 P.3d 627, at *3-*4.

Plaintiff has not shown that he

is similarly situated with persons civilly committed under laws
other than the KSVPA.
not

guilty

by

Mr. Kelner is neither a person who was found

reason

of

insanity

nor

one

whose

commitment

proceedings bore no relation to his guilt of criminal offenses. He
is not the same as a person civilly committed solely due to mental
infirmities and not based on an adjudication of sexually violent
behavior that posed a danger to others.
8

Instead, plaintiff is a

person who was convicted of a predicate sexually violent offense in
the past and who currently meets the definition of an SVP including
that he presents a high likelihood of committing sexually violent
acts if released.

There are institutional and societal interests

at stake in the protection of society from the dangerous and
violent behavior of persons who are committed as sexually violent
predators. As noted, it follows that the rights of persons such as
plaintiff are “not coextensive with those of civil committees like
the plaintiff in Youngberg.” Furthermore, the KSVPA does not treat
similarly situated individuals dissimilarly; all members of the
class of persons who are found to be sexually violent predators
with mental abnormality or personality disorder likely to engage in
predatory

acts

of

sexual

violence

are

subject

to

identical

treatment, “and there exist clear distinctions between this class
and other classes which are not similarly treated.” Matter of Hay,
263 Kan. at 833.
Plaintiff cites other Kansas statutes, that are not part of
the KSVPA, and argues that these state laws were violated by his
placement in the county jail.

As plaintiff was informed in the

court’s prior order, whether his confinement in the Ellis County
Jail violated state law is a question for the state courts and
presents no cognizable claim under § 1983. Gaines v. Stenseng, 292
F.3d 1222, 1225 (10th Cir. 2002); see Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150 (1970).

Plaintiff’s claim that he was denied

bail is also based upon state law, and likewise fails to state a
claim under § 1983.
9

There

are

additional

reasons

to

dismiss

this

action.

Defendant Assistant Kansas Attorney General Bauch is entitled to
absolute prosecutorial immunity for alleged acts that were done as
an advocate during the presentation of a civil commitment case in
state court.

See Buckley v. Fitzsimmons, 509 U.S. 259, 272-73

(1993); Imbler v. Pachtman, 424 U.S. 409, 431 (1976).

Likewise,

defendant Judge Toepfer has absolute judicial immunity for any
order made in a judicial proceeding over which he presided. See 28
U.S.C. § 1915(e)(2)(B)(providing for dismissal if pro se plaintiff
proceeding in forma pauperis seeks monetary relief against a
defendant who is immune from such relief).

The only defendant

named by plaintiff who is not absolutely immune to suit for money
damages is Sheriff Harvin.

While defendant Harvin may have been

plaintiff’s custodian during his detention at the Ellis County
Jail, plaintiff alleges no facts indicating that Sheriff Harvin
directly participated in the decision to place plaintiff at the
jail pending his civil proceedings.
It remains quite clear that the essence of plaintiff’s
complaint is nothing more than a challenge to the fact of his
detention in a jail facility prior to and during his civil SVP
proceedings. The legality of this “pre-trial detention” could have
properly been tested by Mr. Kelner by way of a § 2241 petition.4
4
The court perceives that 190 days might not have been sufficient time
for plaintiff to adjudicate his claim in state proceedings and then in federal
court under § 2241. Had he managed to properly file a state habeas action and
then a § 2241 petition while he was actually detained at the county jail, the
state courts or this court might have retained jurisdiction under certain
circumstances. See e.g., Schall v. Martin, 467 U.S. 253, 280 (1984)(New York
courts have adopted a liberal view of the doctrine of “capable of repetition, yet

10

See Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007); Montez
v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).

Immediate or

speedier release from state custody thought to be illegal must be
sought by way of a petition for writ of habeas corpus.
Rodriguez, 411 U.S. 475, 484 (1973).
pretrial custody at the jail.

Preiser v.

Mr. Kelner is no longer in

He failed to initiate a timely

habeas corpus challenge to the legality of his pretrial custody
while he was still “in custody.”5
challenge

the

legality

therefore be moot.

of

that

The opportunity for him to
custody

by

proper

means

may

See e.g., McAlpine v. Thompson, 187 F.3d 1213,

1216 (10th Cir. 1999).

Likewise, his challenge to the legality of

that detention without an opportunity for bond is moot.

See Ferry

v. Gonzales, 457 F.3d 1117, 1132 (10th Cir. 2006).
Nevertheless, plaintiff seeks damages for this 190-day
period of allegedly illegal detention.

Because plaintiff’s claims

for damages and declaratory relief would necessarily imply the
invalidity of his detention in the Ellis County Jail, they are
barred by Heck v. Humphrey, 512 U.S. 477 (1994).

See Cohen v.

Clemens, 321 Fed.Appx. 739, 741 (10th Cir. 2009)(unpublished, cited
as persuasive authority).

The Tenth Circuit in Cohen reasoned as

follows:

evading review: precisely in order to ensure that pretrial detention orders are
not unreviewable.). On the other hand, claims for injunctive relief actually
concerning conditions at the jail, including being held without bail, are
rendered moot by the detainee’s removal from those conditions. Money damages are
not properly sought in a habeas corpus petition.
5
Section 2241(c)(1) provides that “[t]he writ of habeas corpus shall
not extend to a prisoner unless [he] is in custody.” See Riley v. I.N.S., 310
F.3d 1253, 1257 (10th Cir. 2002).

11

In Heck, the Supreme Court held that no cause of
action exists under 42 U.S.C. § 1983 for actions
that, if proven, would “necessarily imply” the
invalidity
of
an
underlying
conviction
or
sentence, unless that conviction or sentence is
first properly invalidated, either on appeal or
through habeas corpus proceedings. Heck, 512 U.S.
at 487, 114 S.Ct. 2364. . . .
. . . [T]he rule in Heck is not limited to claims
challenging the validity of criminal convictions.
See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct.
1584, 137 L.Ed.2d 906 (1997)(applying Heck to a §
1983 claim challenging procedures used to deprive
a prison inmate of good time credits); Huftile v.
Miccio-Fonseca, 410 F.3d 1136, 1137 (9th Cir.
2005)(applying Heck to a § 1983 claim challenging
civil commitment under California’s Sexually
Violent Predators Act); Hamilton v. Lyons, 74 F.3d
99, 102-03 (5th Cir. 1996)(applying Heck to a §
1983 claim challenging the coercive nature of a
pretrial detainee's confinement prior to giving a
statement regarding pending charges).
Because
Cohen would need to prove that his detention was
unlawful in order to receive an award of damages
for that detention, the district court correctly
concluded that Heck applied to bar Cohen’s Bivens
action.
Id.

Plaintiff has presented no evidence that any court has

invalidated his pretrial detention in the county jail.
U.S. at 486-87.

Heck, 512

It follows that plaintiff’s claim for money

damages based upon allegations that his pretrial detention was
unconstitutional is barred by Heck.
In addition, a person in confinement pursuant to the
judgment of a state court is required to fully exhaust state court
remedies prior to filing a habeas corpus action in federal court
challenging that confinement. See 28 U.S.C. § 2254(b)(1)(A). This
exhaustion doctrine applies to habeas petitions brought under §
2241 as well as § 2254.

Montez, 208 F.3d at 866 (“A habeas

12

petitioner is generally required to exhaust state remedies whether
his action is brought under § 2241 or § 2254.”)(citing Coleman v.
Thompson, 501 U.S. 722, 731 (1991)); see also Williams v. O’Brien,
792 F.2d 986, 987 (10th Cir. 1986). It does not appear that
plaintiff satisfied the exhaustion prerequisite prior to seeking
relief in federal court.

No justification is presented for

permitting Mr. Kelner to so easily circumvent the established “in
custody” and exhaustion prerequisites to adjudicating a claim of
illegal state detention.
The court previously found that Mr. Kelner described no
conditions

at

the

unconstitutional.
constitutional

county

jail

that

he

alleged

were

He was advised that in order to establish a

violation,

he

was

required

to

allege

that

a

condition was applied to punish him, and that it was not reasonably
related to a legitimate governmental objective.

See Merryfield v.

Jordan, 584 F.3d 923, 925-26 (10th Cir. 2009)(affirming district
court's decision to dismiss SVP’s complaint because “none of the
privations of which he complained involved a fundamental right, and
he alleged no facts indicating that any restrictions are not
rationally related to a legitimate governmental objective or are
irrational or arbitrary”).

He makes no attempt in his Response to

discuss any particular condition at the jail, and thus fails to
cure this deficiency in his complaint.

Moreover, plaintiff does

not allege facts indicating that his detention at the county jail
caused him “injury in fact, economic or otherwise.”

See Memphis

Community School Dist. v. Stachura, 477 U.S. 299, 307 (1986)(“[T]he
13

basic purpose” of § 1983 damages is “to compensate persons for
injuries that are caused by the deprivation of constitutional
rights.”)(citing Carey v. Piphus, 435 U.S. 247, 254 (1978)).

Nor

has he suggested any malicious acts by defendants that might
entitle him to punitive damages.

It follows that Mr. Kelner has

stated no claim for money damages or declaratory relief based upon
conditions of his confinement at the jail.
Insofar as Kelner’s allegations may be intended as a
challenge to his civil commitment, they must have been presented in
the first instance at his commitment proceedings and on direct
appeal in the courts of the State.
For all the foregoing reasons, the court concludes that
the complaint must be dismissed for failure to present a federal
constitutional claim for the requested relief that is cognizable
under either 42 U.S.C. § 1983 or 28 U.S.C. § 2241.
IT IS THEREFORE ORDERED that plaintiff’s Motions for Leave
to Proceed in forma pauperis (Docs. 2, 7) are incomplete, but are
granted for the sole purpose of dismissing this action.
IT IS FURTHER ORDERED that this action is dismissed,
without prejudice, for failure to state sufficient facts to support
a cognizable federal constitutional claim.
IT IS SO ORDERED.
Dated this 25th day of April, 2011, at Topeka, Kansas.

14

s/Sam A. Crow
U. S. Senior District Judge

15