Stewart v. Montgomery County, Kansas
Filing
11
MEMORANDUM AND ORDER ENTERED: Within thirty (30) days of receipt of this order, Plaintiff shall show cause to the Honorable Sam A. Crow why Plaintiff's complaint should not be dismissed. Signed by Magistrate Judge David J. Waxse on 06/13/17. Mailed to pro se party John L. Stewart by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN L. STEWART,
Plaintiff,
v.
CASE NO.16-3199-SAC-DJW
MONTGOMERY COUNTY, KANSAS,
Defendant.
MEMORANDUM AND ORDER
On September 24, 2016, Plaintiff, a prisoner1 appearing pro
se and in forma pauperis, filed a 42 U.S.C. § 1983 civil rights
complaint.
For
the
reasons
discussed
below,
Plaintiff’s
complaint is subject to dismissal without prejudice.
Statutory Screening of Prisoner and In Forma Pauperis Complaints
The
Court
is
required
to
screen
complaints
brought
by
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.
28 U.S.C. § 1915A(a).
Additionally,
with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,
1
the
Court
has
a
duty
to
screen
the
complaint
Since filing this complaint, Plaintiff has been released from confinement.
1
to
determine
its
sufficiency.
28
U.S.C.
§
1915(e)(2).
Upon
completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.
28 U.S.C. § 1915A(b); 28 U.S.C.
§ 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007).
In
applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.
See
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir.
2011).
While
a
pro
se
plaintiff’s
complaint
must
be
liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
pro se status does not relieve the plaintiff of “the burden of
alleging
sufficient
could be based.”
facts
on
which
a
recognized
legal
claim
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
Complaint
Plaintiff’s
complaint
stems
from
his
arrest
for
driving
under the influence (“DUI”) in Montgomery County, Kansas, on
December
12,
2014.
Plaintiff
was
held
and
charged
with
a
misdemeanor, but the charges were voluntarily dismissed in early
2
January of 2015.
Plaintiff was subsequently held pursuant to a
warrant from Jasper County, Missouri, and then extradited to
Missouri on January 27, 2015, to face a felony DUI charge there.
Plaintiff’s first count claims his imprisonment in Montgomery
County from December 12, 2014, through January 27, 2015, was
unlawful.
Plaintiff alleges he did not receive “credit” for
this 46 days of confinement.
On
February
9,
2015,
the
Montgomery
County
District
Attorney (“DA”) refiled charges against Plaintiff, this time as
DUI–3rd offense with at least one conviction in the preceding ten
(10)
years,
which
is
a
felony.
Plaintiff
alleges
the
DA
strategically dismissed the misdemeanor charge related to the
December
12
arrest
after
learning
of
the
Missouri
charge,
planning to refile as a felony.
Kansas filed a detainer with Missouri on August 31, 2015.
Per
the
Interstate
Agreement
on
Detainers
Act
(“IADA”),
Plaintiff received notice of the Montgomery County detainer on
October 6, 2015, and immediately requested disposition of the
Kansas charge.
on
October
15,
Defendant received notice of Plaintiff’s request
2015.
County on March 16, 2016.
Plaintiff
was
returned
to
Montgomery
Under the IADA, Montgomery County had
180 days from the receipt of Plaintiff’s request for disposition
to commence trial on the charge.
The 180 days expired on April
12, 2016, without trial commencing.
3
As a result, the charge
against Plaintiff was dismissed with prejudice by the Montgomery
County District Court on May 25, 2016.
Plaintiff was returned
to Missouri on June 3, 2016, to continue serving his sentence
there.
Plaintiff’s
second
count
claims
he
was
unlawfully
confined by Defendant from April 12, 2016, when the 180 days
expired, until June 3, 2016, when he was returned to Missouri.
Plaintiff’s third count claims that the refiling of charges
and issuance of the detainer by Montgomery County negatively
impacted his release on parole in Missouri.
His argument seems
to be that because the Montgomery County charge was ultimately
dismissed, he should be able to recover for the negative impact
on his Missouri parole determination.
Plaintiff sues one defendant, Montgomery County, Kansas,
and he seeks “the fullest compensation
allowable for the 98
days” of allegedly unlawful confinement he suffered.
Analysis
After reviewing Plaintiff’s complaint with the standards
set out above in mind, the Court finds that the complaint is
subject to summary dismissal under 28 U.S.C. § 1915A(b) and 28
U.S.C. § 1915(e)(2) for the following reasons.
1. Plaintiff seeks monetary damages from a defendant who is
immune from such relief (28 U.S.C. § 1915A(b)(2))
Plaintiff has named Montgomery County as the defendant in
this case.
A county may be liable on a § 1983 claim only when a
4
plaintiff is deprived of his constitutional rights pursuant to a
policy or custom of the county.
See Monell v. Dept. of Social
Services, 436 U.S. 658, 694 (1978).
Plaintiff must show: (1)
that a county official committed a constitutional violation and
(2) a county policy or custom was the moving force behind the
constitutional deprivation.
Campbell v. City of Spencer, 777
F.3d 1073, 1077 (10th Cir. 2014).
either of these requirements.
Plaintiff has not satisfied
As discussed below, he has not
shown any constitutional violation, and he makes no allegation
of any Montgomery County policy or custom being the moving force
behind his allegedly unlawful incarceration.
Montgomery County
should be dismissed as a defendant.
In his complaint and attached exhibits, Plaintiff complains
at different points about the Montgomery County District Court
(“I
believe
that
the
court
acted
with
dismissing and re-filing this charge.”
malice
by
repeatedly
Doc. #1, p. 5) and the
Montgomery County District Attorney (“I believe the Montgomery
County, Kansas District Attorney treated my case with malice.”
Doc. #1, p. 58).
construed
as
To the extent the complaint could be liberally
naming
either
the
district
court
judge
or
the
Montgomery County DA as the intended defendant, both would be
entitled to absolute immunity for
judge
has
absolute
“nonjudicial”
or
immunity
were
taken
their alleged actions.
unless
in
5
the
his
or
her
complete
actions
absence
of
A
were
all
jurisdiction.
Mireles
v.
Waco,
502
U.S.
9,
11-12
(1991).
Similarly, “a prosecutor is entitled to absolute immunity for
those
actions
initiating
that
and
cast
presenting
him
in
the
the
role
of
government's
an
case.”
advocate
Mink
v.
Suthers, 482 F.3d 1244, 1261-62 (10th Cir. 2007). While Plaintiff
baldly alleges malice on the part of the DA, he cites no support
for this allegation.
Moreover, even allegations of malicious
prosecution do not defeat this immunity.
Glaser v. City and
County of Denver, 557 F. App’x 689, 705 (10th Cir. 2014).
Here,
Plaintiff complains about the Montgomery County DA dismissing
the initial charge of misdemeanor DUI and then refiling against
Plaintiff, this time as a felony DUI.
This conduct is squarely
within the DA’s role as advocate for Montgomery County.
Cf.
Walkusch v. Bd. of Cty. Comm'rs for & on Behalf of Larimer Cty.,
Colo., 627 F. Supp. 541, 543 (D. Colo. 1986)(finding conduct of
prosecutor
in
dismissing
and
refiling
a
case
is
within
advocatory function and entitled to absolute immunity).
Plaintiff has not alleged any actions on the part of the
judge
or
prosecutor
Therefore,
both
are
that
fall
immune
outside
from
protected
recovery
activities.
under
§
1983.
Plaintiff’s complaint is subject to dismissal under 28 U.S.C. §§
1915A(b)(2)
and
1915(e)(2)(B)(iii)
because
he
seeks
damages from a defendant who is immune from such relief.
6
monetary
2. Plaintiff fails to state a claim upon which relief may be
granted (28 U.S.C. § 1915A(b)(1))
Even if Plaintiff could name a proper defendant, the facts
he alleges do not show that his constitutional rights have been
violated as required to state a claim under § 1983.
In Count I,
Plaintiff complains that his imprisonment in Montgomery County
from December 12, 2014, through January 27, 2015, was unlawful
and
malicious.
Plaintiff’s
argument
seems
to
center
on
an
allegation that he did not receive credit for these 46 days,
presumably when he was sentenced by the Missouri court for the
Missouri felony.
He does not explain how Montgomery County,
Kansas (or the Montgomery County DA or district court judge, for
that matter) was at fault.
Nor does Plaintiff explain how this is a constitutional
violation in any event.
The Eighth Circuit considered a very
similar issue in Bagley v. Rogerson, 5 F.3d 325 (8th Cir. 1993).
In that case, the plaintiff brought suit under § 1983 alleging
under state law that prison officials should have credited his
state sentence with time served on a vacated federal sentence.
The Eighth Circuit found that the plaintiff failed to state a
claim
under
§
1983
for
a
violation
of
a
liberty
interest
protected by the Due Process Clause of the Fourteenth Amendment.
At most, the Eighth Circuit concluded,
7
Mr. Bagley
alleged a
violation of state statutory or decisional law which is not
cognizable under § 1983. Id. at 329.
In situations where an accused is held in jail prior to
trial due to the inability to make bail, denying him credit for
the time served as a pretrial detainee may violate the Equal
Protection Clause if he receives the maximum statutory sentence
for his crime.
“It is impermissible, under the Equal Protection
Clause, to require that indigents serve sentences greater than
the
maximum
indigency.”
provided
by
statute
solely
by
reason
of
their
Hall v. Furlong, 77 F.3d 361, 364 (10th Cir. 1996).
In this case, Plaintiff pled guilty to a Class D felony on the
Missouri
charge.
imprisonment.
He
was
sentenced
to
(3)
years
The maximum term of imprisonment under Missouri
law for a Class D felony is seven (7) years.
RSMo.
three
Consequently,
the
Equal
Section 558.011.1,
Protection
Clause
is
not
implicated by a failure to credit him with 46 days of time
served.
Plaintiff’s
claim
in
Count
I
does
not
make
out
a
constitutional violation.
In Count II, Plaintiff claims his confinement in Montgomery
County from April 12, 2016, through June 3, 2016, was unlawful
and malicious.
Plaintiff apparently bases his contention on the
fact that the Montgomery County charge was ultimately dismissed,
with the court finding Montgomery County should have commenced
trial against Plaintiff by April 12 and did not do so.
8
However,
the court did not issue its order dismissing the charge until
May 25.
Once the order was issued, Plaintiff was returned to
Missouri eight (8) days later to continue to serve his sentence
there.
This was not an unreasonable delay.
Furthermore, this
is not a situation where Plaintiff was denied liberty.
If he
had not been confined in Montgomery County from April 12 to June
3, 2016, he would have been confined in Missouri.
Plaintiff’s
complaint
about
the
Montgomery
County
DA
dropping the Kansas misdemeanor charge in early January, 2015,
and then refiling felony charges against Plaintiff on February
9, 2015, also does not state a constitutional violation.
The
law is clearly established that a prosecutor's “decision whether
or not to prosecute, and what charge to file or bring before a
grand
jury,
generally
Bordenkircher
v.
rests
Hayes,
434
entirely
U.S.
in
357,
364
his
discretion.”
(1978).
This
discretion is limited in that a prosecutor’s decision cannot be
based on an arbitrary classification or discriminatory purpose
in violation of the Equal Protection Clause of the Fourteenth
Amendment.
Wayte v. United States, 470 U.S. 598, 608 (1985).
Plaintiff has made no such allegation.
Plaintiff does allege
the DA was influenced by a desire to use the Missouri conviction
to prosecute Plaintiff for felony DUI rather than misdemeanor
DUI.
See
This does not state a constitutional violation either.
United
States
v.
Batchelder,
9
442
U.S.
114,
125
(1979)
(finding that even if a prosecutor is influenced in a charging
decision by the punishment that may be assessed upon conviction,
“this fact, standing alone, does not give rise to a violation of
the Equal Protection or Due Process Clause.”).
Plaintiff’s
Montgomery
claim
County
in
charge
Count
III
prevented
seems
his
to
be
early
that
release
the
in
Missouri, and because it was ultimately dismissed, he should be
able to recover for the negative impact on his Missouri parole
determination.
While not directly challenging the validity of the parole
board’s
determination,
the
claim
Plaintiff
makes
implies that the board’s decision was invalid.
necessarily
Before Plaintiff
can recover monetary damages stemming from that decision, he
must
show
that
the
decision
has
previously
been
invalidated
through direct appeal, a habeas action, or some other means.
See Reed v. McCune, 298 F.3d 946, 953-54 (10th Cir. 2002), citing
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Jacobs
v.
Cushinberry,
defects
44
F.
challenged
by
App’x
889,
891
(petitioner)
(10th
Cir.
necessarily
2002)(“The
imply
the
invalidity of the parole decision; consequently, before he may
obtain monetary damages stemming from that decision, (he) must
demonstrate
that
the
decision
has
previously
been
invalidated.”); see also Crow v. Penry, 102 F.3d 1086, 1087 (10th
Cir. 1996); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995).
10
Plaintiff does not allege that his parole determination has been
invalidated.
As a result, his claim for damages resulting from
the denial of early release is not cognizable under § 1983.
Even if Plaintiff’s claim in Count III were not subject to
the Heck bar, he could not proceed because he has not shown a
violation of a constitutional right.
Court
has
inherent
plainly
right
of
held
a
that
there
convicted
The United States Supreme
“is
no
person
to
constitutional
be
or
conditionally
released before the expiration of a valid sentence.”
Greenholtz
v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1,
7 (1979); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280
(1998).
While state law may create a protected liberty interest
in parole or early release, the Eighth Circuit has found that
the Missouri parole statutes create no liberty interest under
state law in the parole board's discretionary decisions.
Adams
v. Agniel, 405 F.3d 643, 645 (8th Cir. 2005), citing Marshall v.
Mitchell, 57 F.3d 671, 673 (8th Cir. 1995).
Plaintiff has failed to state a claim upon which relief may
be granted under § 1983 making his complaint subject to summary
dismissal under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(ii).
Summary
For the reasons discussed above, this 42 U.S.C. § 1983
action
is
subject
to
summary
dismissal
1915A(b) and 28 U.S.C. § 1915(e)(2)(B).
11
under
28
Accordingly,
U.S.C.
the
§
Court
will direct Plaintiff to show cause why this matter should not
be dismissed.
The failure to file a specific, written response
waives de novo review by the District Judge, see Thomas v. Arn,
474 U.S. 140, 148-53 (1985), and also waives appellate review of
factual
and
legal
allegations.
Makin
v.
Colo.
Dept.
of
Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED that within thirty (30) days of
receipt
of
this
order,
Plaintiff
shall
show
cause
to
the
Honorable Sam A. Crow why Plaintiff’s complaint should not be
dismissed.
IT IS SO ORDERED.
DATED:
This 13th day of June, 2017, at Kansas City, Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
12
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