Stewart v. Montgomery County, Kansas
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,
MONTGOMERY COUNTY, KANSAS,
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 is subject to dismissal without prejudice.
Statutory Screening of Prisoner and In Forma Pauperis Complaints
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).
with any litigant, such as Plaintiff, who is proceeding in forma
Since filing this complaint, Plaintiff has been released from confinement.
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.
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
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.
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
pro se status does not relieve the plaintiff of “the burden of
could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
under the influence (“DUI”) in Montgomery County, Kansas, on
misdemeanor, but the charges were voluntarily dismissed in early
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
Plaintiff alleges he did not receive “credit” for
this 46 days of confinement.
Attorney (“DA”) refiled charges against Plaintiff, this time as
DUI–3rd offense with at least one conviction in the preceding ten
strategically dismissed the misdemeanor charge related to the
planning to refile as a felony.
Kansas filed a detainer with Missouri on August 31, 2015.
Plaintiff received notice of the Montgomery County detainer on
October 6, 2015, and immediately requested disposition of the
Defendant received notice of Plaintiff’s request
County on March 16, 2016.
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.
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
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.
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
A county may be liable on a § 1983 claim only when a
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
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.
should be dismissed as a defendant.
In his complaint and attached exhibits, Plaintiff complains
at different points about the Montgomery County District Court
dismissing and re-filing this charge.”
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).
To the extent the complaint could be liberally
Montgomery County DA as the intended defendant, both would be
entitled to absolute immunity for
their alleged actions.
Similarly, “a prosecutor is entitled to absolute immunity for
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).
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.
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
advocatory function and entitled to absolute immunity).
Plaintiff has not alleged any actions on the part of the
Plaintiff’s complaint is subject to dismissal under 28 U.S.C. §§
damages from a defendant who is immune from such relief.
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
allegation that he did not receive credit for these 46 days,
presumably when he was sentenced by the Missouri court for the
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
protected by the Due Process Clause of the Fourteenth Amendment.
At most, the Eighth Circuit concluded,
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
Hall v. Furlong, 77 F.3d 361, 364 (10th Cir. 1996).
In this case, Plaintiff pled guilty to a Class D felony on the
The maximum term of imprisonment under Missouri
law for a Class D felony is seven (7) years.
implicated by a failure to credit him with 46 days of time
In Count II, Plaintiff claims his confinement in Montgomery
County from April 12, 2016, through June 3, 2016, was unlawful
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.
the court did not issue its order dismissing the charge until
Once the order was issued, Plaintiff was returned to
Missouri eight (8) days later to continue to serve his sentence
This was not an unreasonable delay.
is not a situation where Plaintiff was denied liberty.
had not been confined in Montgomery County from April 12 to June
3, 2016, he would have been confined in Missouri.
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.
law is clearly established that a prosecutor's “decision whether
or not to prosecute, and what charge to file or bring before a
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
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
This does not state a constitutional violation either.
(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.”).
Missouri, and because it was ultimately dismissed, he should be
able to recover for the negative impact on his Missouri parole
While not directly challenging the validity of the parole
implies that the board’s decision was invalid.
can recover monetary damages stemming from that decision, he
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
invalidity of the parole decision; consequently, before he may
obtain monetary damages stemming from that decision, (he) must
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).
Plaintiff does not allege that his parole determination has been
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.
The United States Supreme
released before the expiration of a valid sentence.”
v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1,
7 (1979); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280
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.
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).
For the reasons discussed above, this 42 U.S.C. § 1983
1915A(b) and 28 U.S.C. § 1915(e)(2)(B).
will direct Plaintiff to show cause why this matter should not
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
Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED that within thirty (30) days of
Honorable Sam A. Crow why Plaintiff’s complaint should not be
IT IS SO ORDERED.
This 13th day of June, 2017, at Kansas City, Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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