United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
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
Nature of the Matter before the Court
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.
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.
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.
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.
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
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.
Statutory Screening of Prisoner Complaints
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. §
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).
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.
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