Harvey v. Missouri Department of Corrections et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $30.50. Any objection to this order must be filed on or before the date payment is due. Failure to comply may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to cure the deficiencies in his complaint. Signed by Senior District Judge Sam A. Crow on 10/31/2013. (Mailed to pro se party Walter Lee Harvey by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WALTER LEE HARVEY,
Plaintiff,
v.

CASE NO.

13-3188-SAC

MISSOURI DEPARTMENT
OF CORRECTIONS et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the United States Penitentiary, Tucson, Arizona.
Plaintiff has also filed a Motion to Proceed without Prepayment of
Fees (Doc. 2).

Having considered all materials filed, the court

assesses an initial partial filing fee and gives plaintiff time to
submit this fee.

In addition, the court finds that the complaint

is deficient in several ways and requires plaintiff to cure these
deficiencies.

If plaintiff fails to pay the part fee and cure all

deficiencies within the prescribed time, this action may be dismissed
without further notice.

FILING FEE
The fee for filing a civil complaint is $400.00, which includes
the statutory fee of $350.00 and an administrative fee of $50.00,

1

or for one granted leave to proceed in forma pauperis it is $350.00.1
The court has considered plaintiff’s Application for Leave to Proceed
without Prepayment of Fees, the certificate included therein, and
the attached copy of Mr. Harvey’s inmate account transactions over
the past several months.

28 U.S.C. § 1915(b)(1) requires the court

to assess an initial partial filing fee of twenty percent of the
greater of the average monthly deposits or average monthly balance
in the prisoner’s account for the six months immediately preceding
the date of filing of the civil action.

Having examined the records

of plaintiff’s account, the court finds that the averages provided
in the Case Manager’s certificate are clearly incorrect.

Thus, the

average monthly deposits and average monthly balances have been
calculated
plaintiff’s

based

upon

exhibit

the

entitled

actual
“All

transactions
Transactions.”

set

forth
From

in

these

calculations, the court finds that the average monthly deposit during
the relevant time period has been $154.20, and the average monthly
balance has been $ 44.57.

The court therefore assesses an initial

partial filing fee of $ 30.50, twenty percent of the average monthly
deposit rounded to the lower half dollar.

If Mr. Harvey does not

1
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), a prisoner granted
leave to proceed without prepayment of fees is not relieved of the obligation to
pay the full fee of $350.00 for filing a civil action. Instead, being granted
such leave merely entitles an inmate to proceed without prepayment of the full
fee and to pay the filing fee over time through payments deducted automatically
from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).
Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff is
currently confined will be directed to collect twenty percent (20%) of the prior
month’s income each time the amount in plaintiff’s institution account exceeds
ten dollars ($10.00) until the filing fee has been paid in full.

2

satisfy the filing fee within the time prescribed by the court, this
action may be dismissed without prejudice and without further notice.

FACTUAL BACKGROUND
On March 9, 2005, Mr. Harvey filed an application for habeas
corpus relief pursuant to 28 U.S.C. § 2241 in this court that was
denied.2
Court

of

In its opinion affirming that denial, the Tenth Circuit
Appeals

succinctly

set

forth

background

information

pertinent to this case:
In 1983 Mr. Harvey was tried in the United States District
Court for the Eastern District of Missouri, and convicted
of kidnapping, transportation of a stolen vehicle across
state lines, interstate transportation of a female for
immoral purposes, and unlawful use of a firearm. See
United States v. Harvey, 756 F.2d 636 (8th Cir. 1985). He
was sentenced to 120 years’ imprisonment. While serving
his federal sentence, he was sentenced to death in Missouri
state court for committing a murder. Under the authority
of 18 U.S.C. § 4082 (1973)(authorizing U.S. Attorney
General to designate the place of confinement where a
sentence imposed by a federal court shall be served), the
U.S. Bureau of Prisons (BOP) transferred him to the
Missouri Department of Corrections (MODOC) for concurrent
service of his state and federal sentences.
In 1985 Mr. Harvey filed in the United States District
Court for the Western District of Missouri an application
for habeas relief under 28 U.S.C. § 2241, challenging his
transfer to the MODOC. See Harvey v. United States, 615
F.Supp. 1046 (W.D.Mo. 1985). The court denied relief,
stating that “it is obvious that the [MODOC] has been
appropriately designated pursuant to the authority
conferred by Section 4082 as the place of confinement where
petitioner’s federal sentence shall be served.” Id. at
2
Mr. Harvey’s repeated statements in his complaint that he has filed no prior
actions based upon these facts appear to be false. He is warned that various
sanctions may be imposed for the making of false statements in a complaint. See
Fed.R.Civ.P. Rule 11(b), (c).

3

1048.
While the § 2241 application was pending, the Missouri
Supreme Court reversed Mr. Harvey’s death sentence and
remanded the case for retrial. On August 2, 1985, the BOP
issued a federal detainer for Mr. Harvey’s return to
federal custody upon completion of his Missouri sentence.
Ultimately, however, Mr. Harvey was again convicted and
sentenced to life in prison. It also appears that in 1989
he was convicted in Illinois state court on charges of
murder and rape.
During his incarceration in state prison, Mr. Harvey was
advised of the reason for his placement in the custody of
the MODOC. By letter dated December 13, 1999, the BOP
informed him:
This is in response to your recent correspondence
to this office. Your federal sentence commenced on
June 10, 1983.
On March 8, 1985, the federal
government relinquished primary jurisdiction to the
state of Missouri. The Bureau of Prisons (Bureau)
designated the Missouri Department of Corrections
(MODOC), as the designated institution for service
of your federal sentence, thereby making it operate
concurrently with your Missouri sentence.
The federal government has a vested interest in your
continued incarceration until you have met your
obligation in regards to your federal sentence. If
you parole from your Missouri state sentence prior
to being granted release from your federal sentence,
the U.S. Marshals Service will assume custody of
you, and a federal institution will be designated
for service of the remainder of your federal
sentence.
R. Doc. 6, Attach. A, Ex. 4. When Mr. Harvey was paroled
by Missouri on March 24, 2004, he was returned to the
custody of the BOP to serve the remainder of his federal
sentence.
He has been incarcerated at the federal
penitentiary in Leavenworth, Kansas.
Harvey v. Gallegos, 290 Fed.Appx. 142, 143-44 (10th Cir. 2008), cert.
denied, 129 S.Ct. 2016 (2009).

Mr. Harvey’s § 2241 petition filed

4

in 2005 was denied based upon the finding that “the record clearly
establishe[d] [Mr. Harvey’s] continuous service of his federal
sentence throughout his extensive criminal litigation in Missouri
and Illinois,” and that the Western District of Missouri had
“previously determined that [his] transfer to the State of Missouri
for continued service of [his] federal sentence was lawful and in
full compliance with 18 U.S.C. § 4082.”

Id. at 144.

The following

is from the federal district court’s opinion that was upheld by the
Tenth Circuit:
In May 1985 petitioner filed a petition for writ of habeas
corpus under 28 U.S.C. § 2241 in the Western District of
Missouri, alleging that MO–DOC lacked jurisdiction and
authority to confine him because his transfer from federal
to state custody did not comply with 18 U.S.C. § 4082. See
Harvey v. United States, 615 F.Supp. 1046, 1048
(W.D.Mo.1985). . . . In the traverse filed thereafter in
his pending federal habeas action, petitioner prayed for
his return to BOP custody and sought a protective order
to prohibit his placement in the St. Louis County jail for
retrial. Id. at 1046–47. The federal court denied habeas
relief, stating “it is obvious that the St. Louis County
Jail has been appropriately designated pursuant to the
authority conferred by Section 4082 as the place of
confinement where petitioner's federal sentence shall be
served.” Id. at 1048. Petitioner filed no appeal from
that decision.
Thereafter, petitioner was eventually convicted in
Missouri for the murder of Gary Decker, and was convicted
in Illinois for the murder and rape of Donna Decker.
Following petitioner's return from Illinois to Missouri,
Missouri paroled petitioner in 2004 and returned
petitioner to BOP custody.
Petitioner then filed the
instant action, claiming his present federal confinement
is unlawful because BOP relinquished all custody and
jurisdiction over him when they transferred him to
Missouri in 1984, and because federal authorities failed
to take any action to assert jurisdiction and custody over
5

him throughout his extradition between Missouri and
Illinois. The court finds no merit to these claims.
First, the record clearly establishes petitioner's
continuous service of his federal sentence throughout his
extensive criminal litigation in Missouri and Illinois.
Second and significantly, a federal court previously
determined that petitioner's transfer to the State of
Missouri for continued service of petitioner's federal
sentence was lawful and in full compliance with 18 U.S.C.
§ 4082. Petitioner's attempt to now relitigate that claim
is rejected, as are petitioner's related claims that BOP
somehow waived or relinquished all jurisdiction and
custody over him during his prosecutions in Missouri and
Illinois on pending charges in those states.
Finding petitioner has demonstrated no valid ground for
obtaining relief under 28 U.S.C. § 2241, the court
concludes the petition should be dismissed.
Harvey v. Gallegos, 2008 WL 58776, *1-*2 (D.Kan. 2008).

ALLEGATIONS AND CLAIMS
Plaintiff names 4 defendants in the caption of this complaint:
Missouri Department of Corrections (MDOC), United States Marshal
Service (USMS), Federal Bureau of Prisons (BOP) and United States
Department of Justice (DOJ).

Elsewhere, rather than the agencies

in the caption, he designates the “Directors of the MDOC, the USMS
and the BOP as defendants as well as Attorney General of the United
States Eric Holder.

He asserts jurisdiction under 28 U.S.C. §

1343(a), 42 U.S.C. § 1983, 28 U.S.C. § 1331 and Bivens.3
Plaintiff asserts that his constitutional rights under the
Fifth, Eighth, and Fourteenth Amendments have been violated.
3

Bivens v. Six Unknown Named Federal Agents, 403 U.S. 388 (1971).

6

As

facts in support, he alleges that he was “illegally released from
one jurisdiction to another and because of such is now being illegally
detained,” that “the defendant (BOP) gave up sole custody” and that
the BOP is “trying to enforce a federal sentence” that is “null and
void.”

He also alleges that he has “been kept in prison longer than

what he was suppose (sic) to have been.”
Plaintiff seeks immediate release from custody.

In addition,

he seeks a declaration that the “act and omissions described herein
violated” his constitutional rights.

He also seeks compensatory

damages in an unclear amount “per day against each defendant.”
Finally he seeks punitive damages in the amount of 50 million dollars
and costs.

SCREENING
Because Mr. Harvey 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 upon 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).
“To state a claim under § 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.”
7

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

A court liberally

construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

However, the 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

A pro se litigant’s “conclusory

allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.”
935 F.2d 1106, 1110 (10th Cir. 1991).

Hall v. Bellmon,

The complaint must offer “more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

To avoid dismissal, the complaint’s “factual

allegations must be enough to raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555.

Put another way,

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

Id. at 570.

DISCUSSION
Having examined the complaint, in light of Mr. Harvey’s prior
litigation and under the foregoing standards for civil complaints,
the court finds that plaintiff’s complaint is deficient in several
respects.
8

First, there are problems with the defendants and venue.

The

United States agencies named in the caption are absolutely immune
to suit for money damages.

The heads of the agencies designated

elsewhere are not shown to reside within this judicial district.
Moreover, none of these federal agencies or federal officials “acts
under color of state law.”

In sum, plaintiff has not named as

defendant a single person that is amenable to suit in this court.
Plaintiff’s allegation that the events of which he complains occurred
while he was at the United States Penitentiary, Leavenworth, Kansas,
does not give this court jurisdiction over officials who are not
alleged to have acted within this judicial district.
Second, despite plaintiff’s statements to the contrary, it is
evident that he has raised the claims in his complaint in at least
one prior action and that his claims have already been denied on the
merits.

Thus, the claims in the instant complaint are barred by the

principles of issue preclusion and res judicata.
Third, plaintiff’s allegations, including his requests for
immediate release, are mainly in the nature of habeas corpus claims.
In his 2005 action, he properly raised them in a habeas corpus
petition.

His request for money damages based upon such claims is

barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994).

Under Heck,

he may not seek damages on habeas claims unless and until he has had
the underlying

administrative decision overturned.

Moreover,

habeas corpus claims may not be litigated in a civil rights complaint,
9

and the only proper respondent is the habeas applicant’s current
custodian, usually the warden of the institution in which he is
confined.

Mr. Harvey is not confined in this judicial district, and

this court is not the proper venue for litigation of his habeas
claims.
Fourth, plaintiff’s claims for damages are clearly time-barred.
The statute of limitations applicable to damages claims is generally
two years.

Plaintiff complains about events that occurred between

1984 and 2004, which is years beyond the two-year period immediately
preceding his filing of this complaint.
Finally, the court mentions that plaintiff does not allege
sufficient facts to show that he is being “illegally detained past
his incarceration release date.”

His conclusory statements are not

sufficient to state a claim for relief.
no claim for relief.
dismissed

under

28

In sum, plaintiff presents

The court finds that this action should be
U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B) as frivolous and for failure to state a claim.
Plaintiff is given time to show cause why this action should
not be dismissed for all the reasons discussed herein.

If he fails

to show good cause within the time allotted, this action will be
dismissed without further notice and will count as a strike against
Mr. Harvey pursuant to 28 U.S.C. § 1915(g).4

4

Section 1915(g) of 28 U.S.C. provides:
In no event shall a prisoner bring a civil action or appeal a judgment

10

IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 30.50.

Any objection to this order must be filed on or before

the date payment is due.

Failure to comply may result in dismissal

of this action without prejudice.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to cure the deficiencies in his complaint that
have been discussed herein.
IT IS SO ORDERED.
DATED:

This 31st day of October, 2013, at Topeka, Kansas.

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

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.

11