Harvey v. Missouri Department of Corrections et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This action is dismissed as frivolous and for failure to state a claim and counts as a strike against Plaintiff Harvey. Signed by Senior District Judge Sam A. Crow on 07/16/14. 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

confined
Upon

and
at

28

U.S.C.

the

screening

§

United
the

1331

(Bivens)

States

by

Penitentiary,

materials

filed,

initial partial filing fee and

the

the

fee

and

cure

all

federal

Tucson,

court

inmate

Arizona.

assessed

notified Mr. Harvey that

complaint was deficient in several ways.
satisfy

a

an
his

He was given time to

deficiencies.

In

response,

plaintiff paid the initial fee and filed a response (Doc. 4).
Mr.

Harvey

claims

that

the

Bureau

of

Prisons

(BOP)

lost

authority to detain him and that he is entitled to immediate
release

and

damages

as

a

result.

The

extensive

factual

background that includes Mr. Harvey’s federal convictions for
kidnaping and other offenses followed by his murder convictions
in Missouri and Illinois is set forth in the court’s screening

1

order

and

will

not

be

repeated

here.

Having

considered

plaintiff’s response together with the file, the court finds
that

plaintiff

has

not

cured

significant

defects

in

his

complaint and dismisses this action for the reasons stated in
its prior order as well as those that follow.
In its screening order, the court found that plaintiff’s
claim that he is entitled to immediate

release

from federal

custody is in the nature of a habeas corpus claim, which may
only be litigated in a petition filed pursuant to 28 U.S.C. §
2241

and

not

a

civil

rights

complaint.

See

Preiser

v.

Rodriguez, 411 U.S. 475, 499 (1973); Boutwell v. Keating, 399
F.3d 1203, 1209 (10th Cir. 2005)(“Habeas corpus is the only
avenue for a challenge to the fact or duration of confinement,
at

least

when

the

remedy

requested

would

result

in

the

prisoner’s immediate or speedier release.”); Reed v. McKune, 298
F.3d 946, 953 (10th Cir. 2002).

Plaintiff’s bald protestations

in his response that § 2241 “has nothing to do with the issue at
hand” and has “no baring (sic) in this action,” do not convince
the court otherwise.

His assertion that the BOP lost authority

to require him to serve his federal sentence, no matter which of
the several alleged administrative errors he bases it upon, is
undoubtedly a habeas claim.
claim in this action.

It is also plaintiff’s overarching

The court concludes that

plaintiff’s

habeas claims are not properly litigated in this civil rights
2

action, and that this action must be dismissed as a result.
Plaintiff’s

insistence

that

this

matter

proceed

as

a

civil

action despite the court’s rulings compels it to dismiss this
action

as

frivolous

Consequently,

this

and

for

dismissal

failure

counts

as

to
a

state

strike

a

claim.

against

Mr.

Harvey.
The court additionally found in the screening order that
this judicial district is not the correct venue for plaintiff’s
habeas claims because his current custodian is the only proper
respondent

and

is

in

Arizona.

See

28

U.S.C.

§

2243.

In

response, plaintiff continues to argue that his claim is not
habeas

and

remaining.”

is

actually

However,

that

is

“no

version

this

there

federal

sentence

of

plaintiff’s

claim

is

also

that

Mr.

likewise clearly habeas in nature.
In

its

screening

order,

the

court

found

Harvey’s claims challenging his federal custody had been raised
“in at least one prior action,” had “already been denied on the
merits,” and were thus barred by principles of issue preclusion
and res judicata.

Plaintiff’s bald statement in response that

the issues are not the same in this lawsuit is not supported
with a detailed comparison or discussion by him of the claims
raised in his other lawsuits.

1

1

Plaintiff’s citations from cases regarding the liberal reading of pro
se civil complaints likewise do nothing to convince the court that his claims
are not barred by res judicata. Rather than mere notice pleading, the habeas

3

The complaint in this action consists of a six-page “civil
rights

complaint”

“civil

rights

attached.

that

complaint”

upon

that

forms,

is

not

and
upon

another

ten-page

forms,2

which

is

Plaintiff did not present a single clear issue in

these initial filings.
he

is

Nowhere in his non-form complaint does

set forth a “claim”

and label it

as such.

Instead, he

provides a lengthy “Statement of Facts” in which he “states”
that the BOP relinquished “all jurisdiction over” him to the
State

of

Missouri,

that

Missouri

acquired

exclusive

jurisdiction, and that the BOP did not seek to regain custody
when he was transferred to the Illinois DOC to serve a sentence
of

110

years,

jurisdiction.”

which
He

“constitute(d)

also

states

continuous

that

“State

waive

and

of

federal

imprisonment” must run “consecutively absent a Court Order that
they

run

authority

concurrent,”
to

sentencing.”

place
In

and

him

addition,

that
with
he

federal
the

states

MODOC
that

officials
“for
he

is

had

no

concurrent
illegally

detained because the BOP “gave up sole custody” and there are no
“writs or concurrent sentences imposed” and “no Nunc Pro Tunc
Order or Judgment Commitment Order,” and that the BOP’s right to
claimant is required to state facts to support his claims that are sufficient
to establish a federal constitutional violation. See HC Rules 2 & 4 of the
Rules Governing Section 2254 Cases, 28 U.S.C.A. foll. § 2254.
2

Local court rule requires that a civil complaint filed by an inmate be
submitted upon court-approved forms.
This court could have simply
disregarded plaintiff’s attached non-form complaint.

4

enforce his federal sentence is “null and void.”

In his form

complaint, Mr. Harvey does set forth a single claim, but it is
that his constitutional rights are being violated because he
“was illegally released from one jurisdiction to another” and as
a result “is now being illegally detained” and having to serve
“more time than he should.”

(Doc. 1) at pg. 3.

Now

in

his

response, Mr. Harvey says that his claim is that his federal
sentence is illegal because his federal and state sentences were
not ordered to run concurrent in either the federal judgment and
commitment order or a nunc pro tunc order.
While Mr. Harvey has obviously varied his allegations as to
why

his

federal

custody

is

illegal

in

his

administrative

grievances and lawsuits as well as his pleadings in this case,
the variations have little if any significance.

His central

claim throughout the relevant litigation history has been that
he

is

being

illegally

detained

because

somehow lost jurisdiction over him.

federal

authorities

This court quoted portions

of the findings in his prior lawsuits plainly showing that his
claims

challenging

previously

the

rejected.3

legality

of

Even

plaintiff

if

3

his

federal
did

custody
not

were

precisely

In 1985 Mr. Harvey filed a petition for writ of habeas corpus under 28
U.S.C. § 2241 in the Western District of Missouri, claiming that MODOC 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 his subsequent traverse,
petitioner sought his return to BOP custody and a protective order to
prohibit his placement in the St. Louis County jail for retrial.
Id. at

5

present the current form of his claim in his two prior lawsuits,
he provides no justification for this omission.

The contents of

his federal Judgment and Commitment Order have been available
since 1983.

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 did
not appeal from that decision. Id.
In 1999, Mr. Harvey was informed in a letter from the BOP as follows:
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.
. . . 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.
See Harvey v. Gallegos, 290 Fed.Appx. 142, 143-44 (10th Cir. 2008), cert.
denied, 556 U.S. 1196 (2009).
Mr. Harvey’s § 2241 petition filed 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.” The court found that:
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.
Harvey v. Gallegos, 2008 WL 58776, *1-*2 (D.Kan. 2008).
informed by the court that:

Mr. Harvey was then

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.

6

If plaintiff could properly litigate his habeas claims in
this civil rights action, the court would have no difficulty
finding that they entitle him to no relief.
no

facts

and

cites

no

authority

Plaintiff alleges

establishing

that

the

Judgment and Commitment Order (JCO) was itself invalid.

1983

Even if

the JCO did not specify that Harvey’s federal sentence was to
run concurrent with his Missouri state sentence and even if no
nunc

pro

sentence

tunc

order

concurrent

has
to

since

his

issued

Missouri

running
sentence,

his

federal

plaintiff’s

federal sentence has not been rendered illegal or unenforceable.
As Mr. Harvey has been repeatedly advised, he was transferred to
MODOC custody for concurrent service of his state and federal
sentences by another equally valid means.

His sentences were

given concurrent effect pursuant to the authority conferred upon
the

Attorney

General

at

the

time

in

18

U.S.C.

§

4082

designate the place for service of a federal sentence.

to

Thus, a

JCO or nunc pro tunc order providing for concurrent sentences
was not a prerequisite.

As noted upon screening, the Tenth

Circuit expressly found in a prior action that “the BOP did not
abandon custody over Mr. Harvey when it transferred him to the
MODOC

for

service

of

his

challenge that decision.”
further

found

that

the

federal

sentence,

and

he

cannot

Harvey, 290 Fed.Appx. at 144-45.
“BOP

informed

him

that

it

It

retained

custody over him and that the MODOC had been designated as the
7

place of confinement for concurrent service of his sentences.”
Id.

Plaintiff’s own exhibit of the response of Administrator,

National Inmate Appeals dated October 2010 shows that the BOP
explained to him that
the Bureau has the authority to designate a state facility as
the place to serve a federal term of imprisonment . . . (and) .
. . the Bureau designated the Missouri DOC for service of your
federal sentence, thereby making your federal sentence operate
concurrently with your Missouri state sentence.
(Doc. 1-1 at pg. 34).

Plaintiff utterly fails to establish that

the BOP’s designation under § 4082 of a facility in Missouri as
a place for concurrent service of his federal sentence was other
than in accord with federal law or that it in any way rendered
his

federal

sentence

unenforceable

or

violated

his

constitutional rights.
In its screening order, the court also found that the named
defendants,
(MODOC)

and

which
three

are

the

federal

Missouri
agencies,

Department
or

the

of

Corrections

heads

of

those

agencies, were not “persons” amenable to civil suit under § 1983
and that this judicial district does not appear to be the proper
venue in which to sue either the agencies or their heads who do
not reside in this district.
expresses his disagreement.

In his response, plaintiff mainly
His bald statement that Congress .

. . consented to the bringing of constitutional claims against
the federal government and its agencies under the Federal Torts
Claims Act does not cure these defects.
8

He has not alleged

facts and explained how they amount to a claim of negligence on
the part of a particular federal employee cognizable under the
FTCA.

As plaintiff was informed 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.”
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The

court

cannot

simply

construe

plaintiff’s

defective

civil

rights complaint as an FTCA action, which may only be brought
against

the

United

States

and

has

the

jurisdictional

prerequisite that an administrative tort claim must have been
timely submitted to and determined by the appropriate agency.4
The court also previously found that plaintiff’s request
for money damages, based as it is upon his habeas-type claims,
is

barred

by

Heck

v.

Humphrey,

512

U.S.

477,

487

(1994).

Plaintiff’s citation to the dissent in Heck does not convince
the court otherwise.

He does not allege facts to support his

implied assertion that his case is an exception to Heck.
Upon screening, the court further found that plaintiff’s
claims for damages are time-barred by the two-year statute of
limitations

since

he

between 1984 and 2004.”

“complains

about

events

that

occurred

Plaintiff responds that the limitations

period has not run because his “Administrative Remedy Appeal” #
4

Plaintiff’s remark that he “could have” been given notice to “change
the pleading” does not suggest why he failed to submit an amended pleading in
response to the court’s screening order.

9

720591-A1 was received by staff at the USP-Tucson on July 5,
2013, and implies that the time runs from the date on which he
exhausted this claim.

However, his exhibit of this grievance

shows that he only asked why the computation data sheet did not
show that his federal sentence ran concurrently with a Missouri
sentence (Doc. 1-1, at pg. 37).5

Moreover, he does not provide

the content of most of the other 74 administrative grievances
filed

by

him

indicates,

since

concerned

claims for release.
that

his

2004,

current

many

sentence

of

which,

computation

his
or

exhibited

list

concurrency

and

Another grievance he does exhibit shows
claim

was

administrative channels in 2010.

previously

presented

through

In any event, the limitations

period for filing a civil action is not extended for events that
occurred a decade ago or more, simply because plaintiff filed
another administrative grievance.
Plaintiff was warned that if he failed to show good cause
why this action should not be dismissed for all the reasons set
forth in the screening order, this action would be dismissed
without

further

notice

and

count

pursuant to 28 U.S.C. § 1915(g).
and

in

its

prior

screening

as

a

strike

against

him

For the reasons stated herein

Memorandum

and

Order

the

court

dismisses this action pursuant to 28 U.S.C. § 1915A(a) and (b)

5

If this was his first grievance on this matter, it was surely not
timely.

10

and 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to
state a claim.
IT IS THEREFORE ORDERED that plaintiff’s Motion for Leave
to Proceed in forma pauperis (Doc. 2) is granted.

Plaintiff is

hereby assessed the remainder of the $350.00 filing fee to be
paid

through

payments

automatically

deducted

from

his

inmate

trust fund account as authorized by 28 U.S.C. § 1915(b)(2).
Finance

Office

of

the

Facility

where

plaintiff

is

The

currently

incarcerated is directed by copy of this Order to collect from
plaintiff’s account and pay to the clerk of the court twenty
percent (20%) of the prior month’s income each time the amount
in

plaintiff’s

account

exceeds

ten

dollars

($10.00)

until

plaintiff’s outstanding filing fee obligation has been paid in
full.

Plaintiff

custodian
fee,

in

is

directed

authorizing

including

but

not

to

cooperate

disbursements
limited

to

to

fully

satisfy

providing

with
the

any

his

filing
written

authorization required by the custodian or any future custodian
to disburse funds from his account.
IT IS FURTHER ORDERED

that

this action is

dismissed as

frivolous and for failure to state a claim and that it counts as
a strike against Mr. Harvey.
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

confined,
11

and

to

the

court’s

finance

office.
IT IS SO ORDERED.
DATED:

This 16th day of July, 2014, at Topeka, Kansas.

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

12