Garcia-Roman v. Rice County Sheriff's Department

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to satisfy the filing fee herein by either paying the $350.00 fee in full or submitting a properly supported motion to proceed without prepayment of fees upon court-appr oved forms. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for reasons stated herein including failure to state a federal constitutional claim. Signed by Senior District Judge Sam A. Crow on 6/1/2012. (Mailed to pro se party Juan Carlos Garcia-Roman by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JUAN CARLOS GARCIA,
Plaintiff,
v.

CASE NO.

12-3077-SAC

RICE COUNTY
SHERIFF’S DEPARTMENT,

Defendant.
MEMORANDUM AND ORDER
This civil complaint was filed pro se pursuant to 42 U.S.C. §
1983 by Juan Carlos Garcia, an inmate of the Dalby Correctional
Facility, Post, Texas.1

Mr. Garcia seeks an order requiring the

Rice County Sheriff’s Department to return the $10,000 to him that
he alleges he paid for release on bail.

Plaintiff is required to

satisfy the filing fee and to show cause why this action should not
be dismissed on several grounds including failure to name a proper
defendant, failure to state a federal constitutional violation, and
expiration of the statute of limitations.

1

Plaintiff has recently filed four civil complaints in this court.
In three he refers to himself as Garcia Roman, but in the fourth he calls himself
Garcia. In his 2007 criminal case he is referred to as Garcia, while in his 2010
case he is referred to as Garcia Roman. The clerk is directed to list all these
cases under both names to ensure accuracy of records relating to this person.
The court refers to plaintiff as Mr. Garcia in his currently pending cases. In
his petition to enter plea, Mr. Garcia stated that his “full true name is Juan
Carlos Garcia.” U.S. v. Garcia, 47-40069-01-SAC (Doc. 87)(D.Kan. February 20,
2008).

1

FILING FEE
The statutory fee for filing a civil action in federal court
is $350.00.

Mr. Garcia has not paid this fee.

Nor has he

submitted a motion for leave to proceed without prepayment of fees.
This action may not proceed unless and until plaintiff satisfies
the statutory filing fee in one of these two ways.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit a motion together with an
affidavit described in subsection (a)(1), and a “certified copy of
the trust fund account statement (or institutional equivalent) for
the prisoner for the six-month period immediately preceding the
filing” of the action “obtained from the appropriate official of
each prison at which the prisoner is or was confined.”
§ 1915(a)(2).

28 U.S.C.

The clerk shall be directed to provide forms for

filing a proper motion under § 1915, and plaintiff is required to
utilize these forms if he submits such a motion.

If plaintiff does

not satisfy the filing fee by either paying the full amount or
submitting a properly supported motion within the time prescribed
by the court, this action may be dismissed without prejudice and
without further notice.
Mr. Garcia is forewarned that under 28 U.S.C. § 1915(b)(1),
being granted leave to proceed without prepayment of fees does not
relieve a plaintiff of the obligation to pay the full $350 fee.
Instead, it merely entitles him to pay the fee over time through

2

payments automatically deducted from his inmate trust fund account
as authorized by § 1915(b)(2).2

The filing fee of $350.00 must be

paid for each action filed.

FACTUAL BACKGROUND AND CLAIMS
The following allegations by plaintiff do not present a clear
factual background for this complaint.

On December 10, 2006, he

was arrested by the Rice County Sheriff’s Department for kidnaping,
domestic battery and aggravated assault.

He posted bail bond in

the

even

amount

of

criminally.”

$10,000.

He

was

“not

formally

charged

On December 20, 2006, all charges were dismissed.

However, his bail bond was not released.

“The county has also

omitted all requests for retrieval or exoneration of the bail
bond.”

There is no reason why the bond should be withheld or

forfeited.

He was unable to pursue this matter earlier because he

was subsequently incarcerated and deported.

The only defendant

named is the Rice County Sheriff’s Department.
In response to the question on his form complaint regarding
previous lawsuits and administrative remedies, plaintiff alleges
that he has not begun other lawsuits in state or federal court
dealing with the same facts, but has “written several letters

2
If plaintiff files a motion for leave to proceed without prepayment
of fees that is granted, then the Finance Office of the facility where he is
currently confined will be authorized pursuant to §1915(b)(2) to collect twenty
percent (20%) of the prior month’s income each time the amount in plaintiff’s
account exceeds ten dollars ($10.00) until the filing fee has been paid in full.

3

seeking informal resolution with the county without response.”

He

further states that the county has “omitted” his requests.

SCREENING
Because Mr. Garcia is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B).
A court liberally construes a pro se complaint and applies
“less

stringent

lawyers.”
pro

se

standards

than

formal

pleadings

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

litigant’s

“conclusory

allegations

without

drafted

by

However, a
supporting

factual averments are insufficient to state a claim upon which
relief can be based.”
Cir.

1991).

The

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

court

“will

not

supply

additional

factual

allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.”
F.3d 1170, 1173-74 (10th Cir. 1997).

Whitney v. New Mexico, 113
The court accepts all

well-pleaded allegations in the complaint as true.

Anderson v.

Blake, 469 F.3d 910, 913 (10th Cir. 2006). Nevertheless, “when the
allegations in a complaint, however true, could not raise a claim
of entitlement to relief,” dismissal is appropriate. Bell Atlantic

4

Corp. v. Twombly, 550 U.S. 544, 558 (2007).

To avoid dismissal,

the complaint’s “factual allegations must be enough to raise a
right to relief above the speculative level,” and there must be
“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 555, 570 (citation omitted).

The complaint must

offer “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action.”

Id. at 555.

The court must always assure itself of its jurisdiction.

See

Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044,
1048

(10th

independent

Cir.

2006)(stating

obligation

to

that

determine

a

federal
whether

court
subject

has

an

matter

jurisdiction exists and may raise the issue at any stage in the
litigation).
Having screened the materials filed, the court finds the
complaint is subject to being dismissed for reasons that follow.

DISCUSSION
At the outset, the court finds that it appears from the face
of the complaint that this claim is barred by the applicable twoyear statute of limitations.

Plaintiff alleges that the taking of

his bond money occurred in 2006 or 2007. The instant complaint was
not filed within 2 years of the accrual of plaintiff’s cause of
action.

Instead, it was filed 5 or 6 years after the alleged

taking.

Plaintiff alleges that he was confined and deported, but

5

provides

no

dates.

He

does

not

allege

sufficient

facts

to

establish that he is entitled to years of tolling of the statute of
limitations.
In addition, it appears that plaintiff has not named a proper
defendant. Plaintiff sues the Sheriff’s Department of Rice County,
Kansas, baldly claiming that this agency withheld his bond money.
However, he alleges no facts showing the personal participation of
this defendant in collecting, retaining, or disposing of his bond
money.3
county

In Kansas, bond money is generally deposited with the
district

court

rather

than

the

sheriff’s

department.

Plaintiff does not allege facts showing that his $10,000 bond money
is currently or has ever been in the possession of the Rice County
Sheriff’s Department.
Furthermore,

plaintiff’s

remedy

with

respect

a

claim

of

improperly withheld bond money lies in state, rather than federal,
court.

He does not describe any state or county process that took

place and resulted in the forfeiture of his bond, even though such
procedures exist.4

If the state district court declared Mr.

3

In the State of Kansas, defendants arrested for felony and serious
misdemeanor offenses, other than those punishable by death or life imprisonment,
may be released from jail pending trial or plea by posting either a cash or
surety bond. See K.S.A. §§ 22-2716; 22-2802. Plaintiff’s allegations are that
he paid the bond in cash, not that a surety posted bond for him. A judge or
magistrate may admit the defendant to bail conditioned upon defendant’s
appearance at a time specified in the bond. Bail is paid to the clerk of the
district court.
4

K.S.A. § 22-2802 governs release prior to trial and bonds.
currently provides in pertinent part:
(1) Any person charged with a crime shall, at the person’s first

6

It

Garcia’s bond forfeited, which is generally what has occurred when
bond money is not returned, then his immediate recourse was to file
a motion in that court to set aside the forfeiture.

Plaintiff does

not allege that he has filed any motion regarding his bond money in
the state district court.

If he did file a motion in the state

district court that was denied, and simply disagrees with that
court’s rulings, then his recourse was to appeal to the Kansas
Court of Appeals and ultimately to the Kansas Supreme Court.

appearance before a magistrate, be ordered released pending
preliminary examination or trial upon the execution of an appearance
bond in an amount specified by the magistrate and sufficient to
assure the appearance of such person before the magistrate when
ordered and to assure the public safety. If the person is being
bound over for a felony, the bond shall also be conditioned on the
person’s appearance in the district court . . . at the time required
by the court to answer the charge against such person and at any
time thereafter that the court requires.
Unless the magistrate
makes a specific finding otherwise, if the person is being bonded
out for a person felony or a person misdemeanor, the bond shall be
conditioned on the person being prohibited from having any contact
with the alleged victim of such offense for a period of at least 72
hours.
* * *
(4) A deposit of cash in the amount of the bond may be made in lieu
of the execution of the bond pursuant to subsection (3). Except as
provided in subsection (5), such deposit shall be in the full amount
of the bond and in no event shall a deposit of cash in less than the
full amount of bond be permitted. Any person charged with a crime
who is released on a cash bond shall be entitled to a refund of all
moneys paid for the cash bond, after deduction of any outstanding
restitution, costs, fines and fees, after the final disposition of
the criminal case if the person complies with all requirements to
appear in court.
* * *
(13) The appearance bond and any security required as a condition of
the defendant’s release shall be deposited in the office of the
magistrate or the clerk of the court where the release is ordered.
If the defendant is bound to appear before a magistrate or court
other than the one ordering the release, the order of release,
together with the bond and security shall be transmitted to the
magistrate or clerk of the court before whom the defendant is bound
to appear.

7

If Mr. Garcia is suggesting that his bond money was improperly
confiscated and retained by an employee of Rice County outside the
normal state process and that accounting records were tampered
with, he does not allege sufficient factual allegations in support
to state a plausible claim.

Furthermore, such a claim would

clearly involve the sort of random taking of Mr. Garcia’s property,
for which pre-deprivation due process is impracticable. It follows
that his recourse would be the post-deprivation remedies available
in the state court.
It also follows that plaintiff fails to state a federal
constitutional claim.

Federal due process is not violated unless

and until the State fails to provide adequate post-deprivation
remedies for an illegal taking of property.5

Here, plaintiff has

not pursued any state remedies to recover his bond money and does
not allege that state remedies are inadequate.
The

court

concludes

that

plaintiff’s

complaint

does

not

include “enough facts to state a claim to relief that is plausible
on its face.”

Twombly, 550 U.S. at 555, 570.

Plaintiff is given

time to show cause why this action should not be dismissed for the

5
As Mr. Garcia was informed in other pending cases, when a plaintiff
alleges deprivation of property occurring as a result of “a random, unauthorized
act,” the Fourteenth Amendment’s due process requirement is satisfied if the
state provides an adequate post-deprivation remedy. Parratt v. Taylor, 451 U.S.
527, 541-43 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S.
327, 330 (1986); Hudson v. Palmer, 468 U.S. 517, 533 (1984); Zinermon v. Burch,
494 U.S. 113, 128 (“Parratt and Hudson represent a special case . . . in which
postdeprivation tort remedies are all the process that is due, simply because
they are the only remedies the State could be expected to provide.”). Kansas
provides post-deprivation remedies that are adequate.

8

reasons stated herein including failure to state a cognizable claim
under 42 U.S.C. § 1983.

If he fails to show cause within the time

allotted, this action may be dismissed without further notice for
failure to state a claim under 28 U.S.C. § 1915A(a) and (b); 28
U.S.C. § 1915(e)(2)(B).

As a consequence it will count as a “prior

occasion” or strike under 28 U.S.C. § 1915(g).6
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days in which to satisfy the filing fee herein by
either paying the $350.00 fee in full or submitting a properly
supported motion to proceed without prepayment of fees upon courtapproved forms.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to show cause why this action should not be
dismissed for the reasons stated herein including failure to state
a federal constitutional claim.
The clerk is directed to send plaintiff forms for filing a
motion to proceed without prepayment of fees together with a copy

6

Section 1915(g) of 28 U.S.C. provides:

In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.
Id. Should Mr. Garcia acquire three strikes, he will be required to “pay up
front for the privilege of filing . . . any additional civil actions” in federal
court unless he can show “imminent danger of serious physical injury.” 28 U.S.C.
1915(g); Jennings v. Natrona County Detention Center, 175 F.3d 775, 778 (10th
Cir. 1999).

9

of this Order.
The clerk is also directed, if appropriate, to list this case
as filed by a party named both Garcia and Garcia-Roman.
IT IS SO ORDERED.
Dated this 1st day of June, 2012, at Topeka, Kansas.

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

10