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Drake v. County of Sedgwick

United States District Court, D. Kansas

December 29, 2017

COUNTY OF SEDGWICK, et al., Defendants.



         Plaintiff Marcus Todd Drake, a prisoner proceeding pro se and in forma pauperis, brings this 42 U.S.C. § 1983 civil rights complaint. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's complaint (Doc. #1) is based on the following allegations. Plaintiff was sentenced to 18 months of probation after a conviction on his guilty plea in Sedgwick County, Kansas. On April 27, 2016, Sedgwick County issued a probation violation warrant for Plaintiff.[1]On August 22, 2016, Plaintiff was arrested in Miles City, Montana, and charged with forgery. Montana authorities apparently discovered the Kansas warrant at that time. Plaintiff was convicted on the forgery charge and is currently serving a 60-month sentence in Montana.

         Plaintiff is claiming he was detained prior to trial in Montana “for a longer period than necessary” and is being housed with maximum security offenders because of the Sedgwick County, Kansas, warrant. Doc. #4, at 3. He further claims he is “not allowed to participate in work release, not allowed to be housed in the work dorm, not allowed to go to a pre-release center, not allowed to be housed with other minimum security offenders, denied regular parole, ” and was sexually assaulted by Montana prison staff, all due to the Sedgwick County warrant. See Doc. #4, at 2, 3. Mr. Drake claims that Defendants have violated is Fourth, Fifth, Eighth, and Fourteenth Amendment rights.

         Plaintiff names Sedgwick County and Terry Sharp, Jr., a court services officer at the Sedgwick County District Court who signed the probation violation warrant, as defendants. He requests relief in the form of $25, 000.

         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 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, the Court has a duty to screen the complaint to determine its sufficiency. See 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 upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 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 facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). “[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 will not do.” Twombly, 550 U.S. at 555 (internal quotation marks omitted).

         “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); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). In addressing a claim brought under § 1983, the analysis begins by identifying the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393-94 (1989). The validity of the claim then must be judged by reference to the specific constitutional standard which governs that right. Id.

         III. Discussion

         Plaintiff's complaint is subject to dismissal. His fundamental complaint is that he is being held in Montana without trial or hearing on the Sedgwick County, Kanas, warrant in violation of his due process rights under the Fourteenth Amendment. This claim was raised by Plaintiff in his petition for writ of habeas corpus filed with this Court and dismissed on August 23, 2017 (No. 17-3104-SAC). As the Court found in that case, and as the Tenth Circuit has long held, where a petitioner is being detained on an intervening charge, he has no right to a revocation hearing until the intervening sentence is complete and he is taken into custody under the violator warrant. See Small v. Britton, 500 F.2d 299, 301 (10th Cir. 1974); McDonald v. New Mexico Parole Bd., 955 F.2d 631, 633 (10th Cir. 1991) (parolee is not entitled to a violation hearing until he is taken into custody pursuant to the violation warrant and need not be given a revocation hearing before completing an intervening sentence); United States v. Gomez-Diaz, 415 F. App'x. 890, 895 (10th Cir. 2011)(unpublished) (“[A]ny pending grounds for revocation of supervised release on which the detainer was issued may await completion of Mr. Gomez-Diaz's state sentence without violating his constitutional rights”)(citing see Moody v. Daggett, 429 U.S. 78, 88-89 (1976))(and he “is not entitled to a revocation hearing until after he is taken into federal custody on the arrest warrant”)(citing see McDonald, 955 F.2d at 631). In Moody, the Supreme Court expressly held that a parole violator serving an intervening sentence is not entitled to an immediate revocation hearing and that such hearing may be deferred to the expiration of the parolee's intervening sentence. Moody, 489 U.S. at 86. The court reasoned that loss of liberty occurs only upon execution of the warrant. Id. at 87.

         Here, Plaintiff is serving an intervening sentence in Montana, and therefore has no right to a probation revocation hearing in Kansas until the intervening Montana sentence is complete and he is taken into Kansas custody. The Court concludes that if Mr. Drake is claiming that his due process rights are being violated by the failure to hold a speedy revocation hearing on his Kansas probation violation, he is making a legally frivolous claim. Gomez-Diaz, 415 F. App'x at 895; Baird v. Caroche, 171 F. App'x 260, 260-61 (10th Cir. 2006). It follows that if Plaintiff is attempting to challenge the validity of the ...

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