McKee (ID 112354) v. Denning et al
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until January 31, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 01/12/18. Mailed to pro se party Tracy Eugene McKee by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TRACY EUGENE MCKEE,
CASE NO. 16-3202-SAC
FRANK DENNING, et al.,
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Tracy Eugene McKee is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this case should not be dismissed due
to the deficiencies in Plaintiff’s Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court
granted Plaintiff leave to proceed in forma pauperis. Plaintiff asserts that his constitutional rights
have been violated during the prosecution of state criminal charges in Johnson County and
Wyandotte County. Plaintiff claims that the state court acted without jurisdiction because of a
failure to bring his case to trial within the 180-day time period set forth in K.S.A. 22-4303 for the
disposition of detainers.
Plaintiff alleges that he entered the Missouri Department of Corrections on January 26,
2015, serving a ten year sentence. Plaintiff filed two requests for disposition under the IADA,
one in Johnson County on April 20, 2015, and one in Wyandotte County on April 24, 2015.
Wyandotte County deputies transported Plaintiff from Missouri to Wyandotte County on
March 16, 2016, in Case No. 15CR292.
Plaintiff resolved his case on October 30, 2015.
Plaintiff was held for transport to Johnson County on November 11, 2015, for his
appearance in Case No. 15CR110. Plaintiff alleges that this was more than 185 days after his
request for disposition. Plaintiff filed a motion to dismiss on December 4, 2015, and the motion
was denied at a hearing on January 6, 2016. At the hearing, the State argued that the time period
was tolled while he was being held in Wyandotte County. Plaintiff alleges that an extension of
time was not granted for “good cause shown” as authorized by statute.
Plaintiff alleges denial of his December 2015 parole opportunity; unlawful incarceration
due to a violation of his speedy trial rights; wrongful incarceration due to denial of prison
rehabilitation programs; breach of detainer agreement; and denial of his freedoms under the 5th,
6th, 8th and 14th Amendments to the Constitution and the IADA.
Plaintiff alleges as Count I that the state court lost jurisdiction due to the violation of the
IADA and the 5th, 6th, 8th, and 14th Amendments to the United States Constitution. As Count II,
Plaintiff alleges unlawful detainment and illegal incarceration due to the violation of the IADA
and the 5th, 6th, 8th, and 14th Amendments to the United States Constitution. Plaintiff names as
Defendants Frank Denning, Johnson County Sheriff, and Steven J. Obermeier, District Attorney.
Plaintiff’s request for relief includes: dismissal of Case No. 15CR110 with prejudice; immediate
transport to the Missouri Department of Corrections; and monetary compensation for the time he
was incarcerated in Johnson County.
The Court has examined the dockets in Plaintiff’s cases in the Johnson County District
Court, the Kansas Court of Appeals, and the Kansas Supreme Court. Plaintiff filed a mandamus
action (Case No. 115095) in the Kansas Supreme Court on January 20, 2016, and it was denied on
September 6, 2016. It appears that on November 4, 2016, Plaintiff pleaded guilty to one count in
Case No. 15CR110 in Johnson County District Court, and the other two counts were dismissed.
Plaintiff appealed on November 23, 2016, and the Kansas Court of Appeals (Case No. 117071)
affirmed on July 19, 2017.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
“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.” West v. Atkins, 487 U.S. 42, 48 (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.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it;
how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007). 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.” Whitney v. New Mexico,
113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
The Court was prohibited from hearing Plaintiff’s claims during the pendency of his state
court case under Younger v. Harris, 401 U.S. 37, 45 (1971). “The Younger doctrine requires a
federal court to abstain from hearing a case where . . . (1) state judicial proceedings are ongoing;
(2) [that] implicate an important state interest; and (3) the state proceedings offer an adequate
opportunity to litigate federal constitutional issues.” Buck v. Myers, 244 F. App’x 193, 197 (10th
Cir. 2007) (unpublished) (citing Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1204 (10th
Cir. 2003); see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432
(1982)). “Once these three conditions are met, Younger abstention is non-discretionary and,
absent extraordinary circumstances, a district court is required to abstain.” Buck, 244 F. App’x at
197 (citing Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir.
Kansas undoubtedly has an important interest in enforcing its criminal laws through
criminal proceedings in the state’s courts. In re Troff, 488 F.3d 1237, 1240 (10th Cir. 2007)
(“[S]tate control over criminal justice [is] a lynchpin in the unique balance of interests” described
as “Our Federalism.”) (citing Younger, 401 U.S. at 44).
Likewise, the Kansas courts provided
Plaintiff with an adequate forum to litigate his constitutional claims by way of pretrial
proceedings, trial, and direct appeal after conviction and sentence, as well as post-conviction
remedies. See Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993) (“[F]ederal courts should
abstain from the exercise of . . . jurisdiction if the issues raised . . . may be resolved either by trial
on the merits in the state court or by other [available] state procedures.”) (quotation omitted). See
Robb v. Connolly, 111 U.S. 624, 637 (1984) (state courts have obligation ‘to guard, enforce, and
protect every right granted or secured by the constitution of the United States . . . .’”); Steffel v.
Thompson, 415 U.S. 452, 460–61 (1974) (pendant state proceeding, in all but unusual cases, would
provide federal plaintiff with necessary vehicle for vindicating constitutional rights).
“[T]he Younger doctrine extends to federal claims for monetary relief when a judgment
for the plaintiff would have preclusive effects on a pending state-court proceeding.” D.L. v.
Unified Sch. Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); see Buck, 244 F. App’x at 198.
“[I]t is the plaintiff’s ‘heavy burden’ to overcome the bar of Younger abstention.” Phelps v.
Hamilton, 122 F.3d 885, 889 (10th Cir. 1997).
It appears as though Plaintiff’s state court proceedings relating to his Johnson County case
have concluded. If so, to the extent Plaintiff challenges the validity of his sentence or conviction,
his federal claim must be presented in habeas corpus. Likewise, before Plaintiff may proceed in a
federal civil action for monetary damages based upon an invalid conviction or sentence, he must
show that his conviction or sentence has been overturned, reversed, or otherwise called into
question. Heck v. Humphrey, 512 U.S. 477 (1994).
If Plaintiff has been convicted and a judgment on Plaintiff’s illegal detainer claim in this
case would necessarily imply the invalidity of that conviction, the claim may be barred by Heck.
In Heck v. Humphrey, the United States Supreme Court held that when a state prisoner seeks
damages in a § 1983 action, the district court must consider the following:
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
Id. at 487. In Heck, the Supreme Court held that a § 1983 damages claim that necessarily
implicates the validity of the plaintiff’s conviction or sentence is not cognizable unless and until
the conviction or sentence is overturned, either on appeal, in a collateral proceeding, or by
executive order. Id. at 486–87. Plaintiff is directed to show cause why his claim for monetary
compensation is not barred by Heck.
Finally, in any event, Plaintiff’s claims against the District Attorney fail on the ground of
prosecutorial immunity. Prosecutors are absolutely immune from liability for damages in actions
brought under 42 U.S.C. § 1983 that are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Plaintiff’s claims concerning
his criminal case fall squarely within the prosecutorial function.
IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein.
IT IS THEREFORE ORDERED THAT Plaintiff is granted until January 31, 2018, in
which to show good cause, in writing, to the Honorable Sam A. Crow, United States District
Judge, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 12th day of January, 2018.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge
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