Carter v. Adair County Missouri
Filing
14
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs request for reconsideration of the dismissal of his case or to alter/amend judgment [Doc. #11] is DENIED. IT IS FURTHER ORDERED that plaintiffs motion to proceed in forma pauperis on appeal [Doc. #13] is GRANTED. IT IS FURTHER ORDERED that an appeal of the dismissal of this action would not be taken in good faith. 11 13 Signed by District Judge Henry Edward Autrey on 5/28/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
WILLIAM BILLY GENE CARTER,
Plaintiff,
v.
ADAIR COUNTY, MISSOURI,
Defendant.
)
)
)
)
)
)
)
)
)
No. 2:15CV31 NCC
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s request for reconsideration of the dismissal
of this matter. Plaintiff’s request for reconsideration of the dismissal, or to alter or amend
judgment, will be denied. Also before the Court is plaintiff’s motion to proceed in forma
pauperis on appeal. This request will be granted.
Plaintiff, Billy Gene Carter, filed the instant action on April 30, 2015, pursuant to 42
U.S.C. § 1983.
In his complaint against Adair County, Missouri, plaintiff, who has been
formally classified as a “sexually violent predator” (“SVP”) in the State of Missouri, seeks
review of the state court denial of his request for a conditional discharge from the Missouri Sex
Offender Rehabilitation and Treatment Services (“SORTS”) Program. See State v. Carter, Case
No. 02P0202000084 (Adair County Circuit Court, 2014).
In its May 4, 2015 Memorandum and Order, the Court noted that plaintiff’s requested
relief could not be had on § 1983 review, but was only available through the writ of habeas
corpus. See 28 U.S.C. § 2254.1 Moreover, plaintiff is required to have exhausted his state
1
Plaintiff asserts he was once denied relief under § 2254 in this Court as to a request for
conditional release from his SVP status, and therefore, seems to be under the mistaken belief that
he is not entitled to file another § 2254 in this Court. Missouri law allows civilly committed
persons to apply for conditional release on a yearly basis. Mo. Rev. Stat. § 552.040.13.
Missouri law also allows those with SVP status to apply for conditional release each year,
administrative remedies prior to bringing his claims to this Court. See, e.g., Kolocotronis v.
Holcomb, 925 F.2d 278, 279 (8th Cir.1991).
Petitioner asserts he has no remedy available to him because he believes he cannot appeal
the denial of his application for conditional release to the Court of Appeals when he is not given
a hearing before the state trial court on the matter. See Mo.Rev.Stat. § 632.504.2. Of course,
petitioner may appeal whether or not his petition was properly reviewed as “frivolous,” by the
state trial court, as a finding of frivolity is essentially a finding that the conditions of petitioner
have “not so changed” enough to justify release. See, e.g., In re Care and Treatment of Coffman,
225 S.W.3d 439 (Mo. banc 2007); see also, Mo.Rev.Stat. § 632.504. Just as petitioner may seek
review on a finding of a grant or denial of conditional release under the Sexually Violent
Predator’s Act. See Mo.Rev.Stat. § 632.495.
As nothing in the documents submitted by plaintiff show that he has appealed the 2014
Adair County decision denying conditional release to the Missouri Court of Appeals, there is no
indication plaintiff exhausted his state administrative remedies with respect to his request for
release. As explained in the Court’s earlier decision, he must do so prior to bringing the matter
in a habeas action in this Court. Thus, plaintiff’s request for reconsideration of the dismissal of
this action, will be denied.
Accordingly,
pursuant to the SVP statute. See Mo.Rev.Stat. § 632.498. The statute provides for the right to an
attorney at a state hearing in the probate court, provided that the petition for release is not
“frivolous,” as determined under the statute. Id.; see also, Mo.Rev.Stat. § 632.504.
2
“[I]f a person has previously filed a petition for release without the director's approval and the
court determined either upon review of the petition or following a hearing that the petitioner's
petition was frivolous or that the petitioner's condition had not so changed that the person was
safe to be at large, then the court shall deny the subsequent petition unless the petition contains
facts upon which a court could find the condition of the petitioner had so changed that a hearing
was warranted. Upon receipt of a first or subsequent petition from committed persons without
the director's approval, the court shall endeavor whenever possible to review the petition and
determine if the petition is based upon frivolous grounds and if so shall deny the petition without
a hearing.” Mo.Rev.Stat. § 632.504.
-2-
IT IS HEREBY ORDERED that plaintiff’s request for reconsideration of the dismissal
of his case or to alter/amend judgment [Doc. #11] is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to proceed in forma pauperis on
appeal [Doc. #13] is GRANTED.
IT IS FURTHER ORDERED that an appeal of the dismissal of this action would not be
taken in good faith.
Dated this 28th day of May, 2015
___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?