United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
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.
Nature of the Matter before the Court
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.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.
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
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.
Statutory Screening of Prisoner Complaints
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).
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
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).
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.
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.
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 ...