McKee v. Denning

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge.

         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 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 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 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 (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 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 (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)- (2).

         “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 ...