Baily (ID 105482) v. Ash

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 2 & 5 to proceed without prepayment of fees are granted. Plaintiff is granted thirty (30) days in which to show good cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 05/20/15. Mailed to pro se party B.J. D. Bailey by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BJ D. BAILEY,
Plaintiff,
v.

CASE NO.

13-3191-SAC

DONALD ASH, Sheriff,
Defendant.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by a Kansas inmate.
unlawfully

detained

in

the

Plaintiff claims that he was

Wyandotte

County

Detention

Center

(WCDC) for 16 days and that defendant failed to “resolve the
problem.”

The court initially screened the complaint and found

it deficient in several respects.

Plaintiff was given time to

file his complaint upon court-approved forms and ordered to cure
the deficiencies in his new complaint.
before

the

court

upon

plaintiff’s

submitted upon forms (Doc. 4).1
the

file,

the

court

finds

This matter is currently
new

complaint

that

was

Having reviewed all materials in
that

plaintiff

has

not

cured

deficiencies and this action is subject to dismissal for the
additional significant reason that it appears to be time-barred.
Plaintiff is given the opportunity to show cause why this action
1

Plaintiff was also ordered to pay an initial partial filing fee and
submit his motion to proceed without prepayment of fees upon forms. He has
complied with these orders, and these motions (Docs. 2,5) are granted.

1

should not be dismissed for the reasons that follow.
FACTUAL ALLEGATIONS AND CLAIMS
As the
alleges

the

factual basis for
following.

On

his new

June

5,

complaint, Mr. Bailey

2012,

he

appeared

with

counsel before a judge at the Wyandotte County Courthouse in
Case No. 2012-CR-415.

The judge “by agreement and/or contract”

ordered Mr. Bailey released on his own recognizance.

Plaintiff

was not released on June 5, 2012 as he expected, and was instead
illegally detained at the WCDC until June 21, 2012.

Wyandotte

County

WCDC

Sheriff

Ash

and

the

Administrator

of

the

had

“firsthand knowledge” of the court’s order because they had Mr.
Bailey “in their custody and/or control.”

However, they refused

to obey the order.
As

Count

I

of

Amendment violation.”

his

complaint,

Mr.

Bailey

asserts

“8th

As supporting facts, he re-alleges the

foregoing facts and adds that, “[n]o other criminal case would
have required (plaintiff’s) continued confinement.”

He further

alleges that administrative requests were timely submitted to
the “pod officer,” the “policy/procedure was not followed,” and
the “issues in the grievance were not addressed in accordance
with the “detention policies/procedures.”

Plaintiff claims that

he was “unlawfully seized” from the time that the judge ordered
his release.
As Court II, plaintiff asserts “5th and 14th Amendment of the
2

U.S.

Constitution.”

following.
misleading

As

Defendant
documents

facts

“had

in

in

that

support,

their

led

to

he

possession

alleges
false

(plaintiff’s)

the

and/or

continued

confinement contrary to the judge’s order.”

“If such false

and/or

in

misleading

information

had

not”

been

defendants’

possession, plaintiff “would have been release[d] in accordance
with the judge’s order.”
As Count III, plaintiff asserts “14th Amendment of the U.S.
Constitution.”

In support, he re-alleges that he was confined

in the WCDC after the judge issued the “O.R. Order” and “was
intentionally

continued

to

be

incarcerated

contrary

to

said

order.”
Plaintiff seeks one million dollars, reasonable attorney
fees, and costs.
In response to questions on exhaustion, plaintiff repeats
that

“an

official

complaint

was

submitted

within

the

WCDC

“through the pod office” but “no official has responded” to
date.
SCREENING
Because Mr. Bailey is a prisoner, the court is required by
statute to screen his new complaint and to dismiss the complaint
or any portion thereof that is frivolous, fails to state a claim
upon

which

relief

may

be

granted,

defendant immune from such relief.
3

or

seeks

relief

from

a

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

(1988)(citations

law.”

West

omitted);

v.

Atkins,

Northington

1518, 1523 (10th Cir. 1992).

487

v.

U.S.

Jackson,

42,

48-49

973

F.2d

A court liberally construes a pro

se complaint and applies “less stringent standards than formal
pleadings drafted by lawyers.”
94 (2007).

Erickson v. Pardus, 551 U.S. 89,

In addition, the court accepts all well-pleaded

allegations in the complaint as true.
F.3d 910, 913 (10th Cir. 2006).
litigant’s

“conclusory

Anderson v. Blake, 469

On the other hand, a pro se

allegations

without

supporting

averments are insufficient to state a claim.”
935 F.2d 1106, 1110 (10th Cir. 1991).

factual

Hall v. Bellmon,

The complaint must offer

“more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic Corp. v.
Its “factual allegations

must be enough to raise a right to relief above the speculative
level” (id.), and “to state a claim to relief that is plausible
on

its

face.”

additional

Id.

factual

at

570.

The

allegations

to

court
round

“will
out

a

not

supply

plaintiff’s

complaint or construct a legal theory on plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
4

FAILURE TO SHOW PERSONAL PARTICIPATION
In its prior Memorandum and Order (hereinafter M&O), the
court found that plaintiff failed to allege sufficient facts to
show the necessary element of personal participation on the part
of defendant Ash in the alleged illegal detention.

The court

noted that liability could not be assigned to defendant Ash
solely on the basis of respondeat superior and that plaintiff
had not established that County Sheriff Ash had a duty or the
authority

to

release

him

from

detention.

See

Scull

Mexico, 236 F.3d 588, 599-600 (10th Cir. 2000).

v.

New

In his new

complaint, plaintiff still fails to describe any act on the part
of Sheriff Ash.

Instead he argues that both defendants must be

presumed to have had “firsthand knowledge” of the court’s order
releasing

him

on

bond

because

he

was

“in

their

control.”

custody

The Tenth Circuit has explained that:

Supervisors are only liable under § 1983 for their own
culpable involvement in the violation of a person’s
constitutional
rights.
To
establish
supervisor
liability under § 1983, “it is not enough for a
plaintiff merely to show a defendant was in charge of
other
state
actors
who
actually
committed
the
violation. Instead, . . . the plaintiff must establish
‘a deliberate, intentional act by the supervisor to
violate constitutional rights.’” (Citations omitted).
In short, the supervisor must be personally “involved
in the constitutional violation,” and a “sufficient
causal connection” must exist between the supervisor
and the constitutional violation. Rios v. City of Del
Rio, 444 F.3d 417, 425 (5th Cir. 2006).
In order to establish a § 1983 claim against a
supervisor for the unconstitutional acts of his
5

or

subordinates,
a
plaintiff
must
first
show
the
supervisors subordinates violated the constitution.
Then, a plaintiff must show an “affirmative link”
between the supervisor and the violation, namely the
active participation or acquiescence of the supervisor
in the constitutional violation by the subordinates.
Holland v. Harrington, 268 F.3d 1179, 1187 (10th Cir.
2001); Green v. Branson, 108 F.3d 1296, 1302 (10th
Cir. 1997).
In this context, the supervisor’s state
of mind is a critical bridge between the conduct of a
subordinate and his own behavior. Because “mere
negligence” is not enough to hold a supervisor liable
under § 1983, a plaintiff must establish that the
supervisor
acted
knowingly
or
with
“deliberate
indifference” that a constitutional violation would
occur. (Citations omitted).
Serna v. Colorado Dept. of Corrections, 455 F.3d 1151-52 (10th
Cir. 2006).
In discussing this deficiency in its prior M&O, the court
noted

that

existed

plaintiff’s

for

his

own

exhibit

detention,

indicated

namely

violation from a 2009 sentence.

a

other

authority

conditional

release

Plaintiff makes the conclusory

statement in his new complaint that “[n]o other criminal case
would have required (plaintiff’s) continued confinement.”
bald

statement

need

not

be

accepted

supported by no facts whatsoever.2

2

as

true

because

This
it

is

The court concludes that

Plaintiff’s own exhibit, the “Letter of Incarceration” attached to his
original complaint, showed that Mr. Bailey was held in the Wyandotte County
Jail from March 26 to June 21 of 2012 on three matters, not on Case No.
12CR415 alone.
The court took judicial notice of Wyandotte County Case No.
12CR415 referenced by petitioner in which he was convicted of burglary and
sentenced on July 20, 2012.
In addition, it took judicial notice of
Wyandotte County Case No. 09CR708 in which Mr. Bailey was convicted of
burglary and sentenced in October 2009. The court then noted that both these
sentences were active according to the offender information available on-line
as to Mr. Bailey through KASPER.
Mr. Bailey was thus confined based upon a
KCK bench warrant and a probation violation in Case No. 09CR708 in addition

6

plaintiff

still

fails

to

allege

facts

to

show

personal

participation on the part of Sheriff Ash in the alleged illegal
Cf. Wilson v. Montano, 715 F.3d 847, 858-59 (10th

detention.
Cir. 2013).
by

a

Furthermore, “[t]o establish a violation of § 1983

defendant-supervisor,

the

plaintiff

must

establish,

at

minimum, a deliberate and intentional act on the part of the
supervisor to violate the plaintiff's legal rights.”
(citing

Porro

2010)).

v.

Barnes,

Plaintiff’s

624

F.3d

statement

1322,

that

he

1327–28
“was

Id. at 858
(10th

Cir.

intentionally

continued to be incarcerated” is completely conclusory.

It is

not entitled to a presumption of truth, and plaintiff alleges no
facts to establish that Sheriff Ash acted with the “requisite
mental state.”
In

his

Id.

new

complaint,

WCDC as a defendant.

plaintiff

to

“the

“Administrator”

of

However, he then fails to describe any

act or inaction by Administrator.3
complained

adds

pod

office”

Plaintiff alleges that he
or

“pod

officer”

who

“was

responsible for making sure” his request got to Administrator.

to the 2012 burglary charge, which led the court to conclude “that there were
legitimate reasons for plaintiff’s continued detention.”
If plaintiff’s
conditional release violation in his 2009 case was resolved prior to issuance
of the order of release on his new charges he could have simply informed the
court regarding its resolution.
3

Plaintiff generally exclaims “surely” there are “orders” in place that
“direct the sheriff and any other under his control to obey a judge’s order.”
This statement does not show that plaintiff’s 16-day detention was caused by
a policy or custom of either defendant. Nor does plaintiff allege any other
facts suggesting such a policy.

7

However, he does not name the officer as a defendant or explain
what

other

steps

he

took,

if

any,

to

secure

release.4

his

Furthermore, even if the court assumes that both defendants were
aware of the judge’s order, plaintiff still fails to state a
claim for relief because for the first time in his new complaint
he also alleges that defendants “had in their possession false
and/or

misleading

documents”

that

led

to

confinement “contrary to the judge’s order.”
description of these documents.

his

continued

He provides no

Their existence suggests some

possible authority for his detention rather than none.

It also

indicates a culpable mindset on the part of either defendant
since neither is alleged to have created or knowingly relied
upon false documents.
as

opposed

to

participation

In sum, plaintiff fails to allege facts,

conclusory
in

his

statements,

alleged

showing

illegal

direct

detention

by

personal
either

defendant.
FAILURE TO STATE A FEDERAL CONSTITUIONAL CLAIM
The court also found in its prior M&O
allegations

of

Fifth,

and

Eighth

Amendment

nothing more than conclusory statements.
asserts

these

constitutional

provisions

that

plaintiff’s

violations

were

Plaintiff again baldly
and

the

Fourteenth

Amendment, but the supporting facts that follow neither explain

4

Plaintiff does not describe any conversation he had with any official
at the jail or his attorney regarding the order and his not being released.

8

nor

render

obvious

how

these

particular

constitutional

provisions were violated.

For example, plaintiff asserts an

Eighth

in

Amendment

violation

Count

I,

but

his

allegations

contain no suggestion as to how he was subjected to cruel and
unusual

punishment

during

the

days

in

question.

In

short,

plaintiff fails to state facts to support a claim of violation
of the constitutional provisions asserted in his new complaint.
REMAINING CLAIM IS TIME-BARRED
Finally

and

most

significantly,

it

is

clear,

given

the

allegations in plaintiff’s new complaint, that his claim is one
of false imprisonment.5

The United States Supreme Court has held

that while § 1983 provides a federal cause of action for a
constitutional tort of false imprisonment, the length of the
statute of limitations for such a claim is that which the State
provides for personal-injury torts.
U.S. 384, 387 (2007).
action

for

assault,

See Wallace v. Kato, 549

K.S.A. 60–514(b) specifies that “[a]n

battery,

malicious

prosecution,

imprisonment” “shall be brought within one year.”
the

Supreme

Court

considered

the

timeliness

or

false

In Wallace,
of

a

§

1983

complaint seeking damages for a Fourth-Amendment unlawful arrest
claim.

See id. at 386.

The Court reasoned that “[f]alse arrest

5

Plaintiff also baldly complains that he was illegally seized. However,
he does not allege facts to support a claim of illegal or false arrest, and
the facts he does allege are contrary to such a claim. His detention arose
from his arrest on new criminal charges as well as a conditional release
violation, both of which were presumably with probable cause.

9

and false imprisonment overlap; the former is a species of the
latter,” and then “refer(red) to the two torts together as false
imprisonment.”
sort

of

Id. at 389.

unlawful

detention

They further stated that, “[t]he
remediable

by

the

imprisonment is detention without legal process.”
in original).

tort

of

false

Id. (emphasis

Like in Wallace, plaintiff’s claim is based on

his allegations of detention without legal process.

The Court

further held in Wallace that “[l]imitations begin to run against
an

action

for

false

imprisonment ends.”

imprisonment

when

the

alleged

false

Id.

Here, Mr. Bailey alleges that he was illegally detained
until June 21, 2012.

The statute of limitations on his false

imprisonment claim began to run on that date.
deemed

to

have

initiated

this

action

on

Mr. Bailey is

November

1,

2013,

because his original complaint was executed on that date.

This

was several months after the limitations period on his false
imprisonment claim expired, which was on June 21, 2013.
plaintiff

shows

good

cause,

such

as

a

right

to

Unless

equitable

tolling, this action is subject to dismissal as barred by the
statute of limitations.
IT

IS

THEREFORE

ORDERED

BY

THE

COURT

that

plaintiff’s

Motions to Proceed without Prepayment of Fees (Docs. 2 & 5) are
granted.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
10

days in which to show good cause why this action should not be
dismissed for the foregoing reasons including that it is timebarred.
IT IS SO ORDERED.
DATED:

This 20th day of May, 2015, at Topeka, Kansas.

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

11