United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
action, brought by Sean Ballandby, alleges a federal claim
under 42 U.S.C. §1983 and certain state-law torts (false
imprisonment and negligence) against officials located in
Oklahoma or Missouri. Briefly stated, the federal claim
alleges a deprivation of plaintiff's argued-for right to
return to Oklahoma from Missouri under the Interstate
Agreement on Detainers (IAD) Act. The state-law claims allege
that defendants failed in their duties, including their duty
to return plaintiff to Oklahoma and their duty to credit
plaintiff's Oklahoma sentence with time served in
Missouri on a Missouri sentence. The amended complaint
alleges that due to defendants' actions, plaintiff was
incarcerated for at least 150 extra days.
five defendants move for dismissal. This order addresses the
motions in the following sequence.
(1). Joe Allbaugh, Director of the Oklahoma Department of
Corrections (Oklahoma DOC). Doc. no. 36.
(2). Mike Waters, Sheriff of Pawnee County, Oklahoma. Doc.
(3). Anne L. Precythe, Director of the Missouri Department of
Corrections (Missouri DOC). Doc. no. 38.
(4). Eric Schmitt, Attorney General of the State of Missouri.
Doc. no. 37.
(5). Christopher Wade, Prosecuting Attorney for Douglas
County, Missouri. Doc. no. 31, with supporting brief at doc.
reasons set out in this order, all motions other than
Precythe's motion will be granted. The Precythe motion
will be granted in part and reserved in part, to permit
plaintiff an opportunity to seek transfer of the claims
against Precythe if plaintiff wishes to do so.
motions are brought under Rule 12(b)(1) and Rule 12(b)(6),
Fed.R.Civ.P. No. moving briefs refer to Rule 12(b)(2), but
the lack of personal jurisdiction arguments are considered
under that rule. Some motions mention Rule 8(a)(2), Fed. R.
Civ. P., but this order dismisses no claims under Rule 8.
passing on a motion to dismiss, whether bringing a facial
attack on jurisdiction under Rule 12(b)(1) or whether
challenging the complaint for failure to state a cause of
action under Rule 12(b)(6), the non-movant enjoys similar
safeguards; the allegations of the complaint should be
construed favorably to the pleader and the court will not
look beyond the face of the complaint to determine
jurisdiction. See, e.g., Sea Vessel
Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994)
(non-moving party receives the same protection with respect
to 12(b)(1) as it would defending against a motion brought
under Rule 12(b)(6), quoting Osborn v. United
States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)); 2
Moore's Federal Practice, §12.30
(Matthew Bender 3d ed.).
inquiry under Rule 12(b)(6) is whether the complaint contains
enough facts to state a claim for relief that is plausible on
its face. Ridge at Red Hawk, L.L.C. v. Schneider,
493 F.3d 1174, 1177 (10th Cir., 2007), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007). To survive a motion to dismiss, a plaintiff must
nudge his claims across the line from conceivable to
plausible. Id. The mere metaphysical possibility
that some plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint must
give the court reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for these
claims. Ridge at Red Hawk, 493 F.3d at 1177. In
conducting its review, the court assumes the truth of the
plaintiff's well-pleaded factual allegations and views
them in the light most favorable to the plaintiff.
Id. Pleadings that are no more than legal
conclusions are not entitled to the assumption of truth;
while legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
See generally, Ashcroft v. Iqbal, 556 U.S. 662,
677-79 (2009). When there are well-pleaded factual
allegations, a court should as sume t heir veracit y and then
determine whether they plausibly give rise to an entitlement
to relief. Id.
has the burden of establishing personal jurisdiction over a
defendant. Wenz v. Memery Crystal, 55 F.3d 1503,
1505 (10th Cir. 1995). In the preliminary stages
of litigation, plaintiff's burden is light. Id.
Where, as here, there has been no evidentiary hearing,
plaintiff need only make a prima facie showing of
personal jurisdiction to defeat the motion. Id.
Plaintiff may make the prima facie showing by
demonstrating, via affidavit or other written materials,
facts which, if true, would support jurisdiction over the
defendant. OMI Holdings, Inc. v. Royal Ins. Co. of
Canada, 149 F.3d 1086, 1091 (10th Cir. 1998).
If the parties present conflicting affidavits, all factual
disputes must be resolved in the plaintiff's favor and
the plaintiff's prima facie showing is
sufficient notwithstanding the contrary presentation by the
moving party. Wenz at 1505. The allegations in the
complaint must be taken as true to the extent they are
uncontroverted by the defendant's affidavits.
Id. However, only the well pled facts of
plaintiff's complaint, as distinguished from merely
conclusory allegations, must be accepted as true.
exercise of jurisdiction over a nonresident defendant
comports with due process so long as there exist minimum
contacts between the defendant and the forum state.
Trujillo v. Williams, 465 F.3d 1210, 1217-18
(10th Cir. 2006). The minimum contacts necessary
for specific personal jurisdiction may be established
where the defendant has purposefully directed his activities
toward the forum jurisdiction and where the underlying action
is based upon activities that arise out of or relate to the
defendant's contacts with the forum. Id. at
No Official Capacity Claims
court determines, for a number of reasons, that no official
capacity claims are alleged in the amended complaint.
First, the caption of the amended complaint names
each defendant “personally, but acting in
capacity as [their title].” A claim alleged against a
defendant “personally” is generally understood as
a claim which asserts that the defendant is personally
liable, i.e. liable in their personal (individual)
capacity. By contrast, the caption of the original
complaint expressly named each defendant in his or her
“official capacity, ” a phrase which does not
appear in the amended version of the complaint.
Second, the amended complaint was filed by plaintiff
after certain defendants moved to dismiss, arguing that the
official capacity claims in the original version of the
complaint were barred under the Eleventh Amendment because
such official capacity claims are actually claims against a
state. The amended complaint, naming defendants
“personally, ” was filed in response to these
Eleventh Amendment arguments. This sequence of events
suggests no official capacity claims, which would have again
triggered Eleventh Amendment defenses, were intended.
Third, the amended complaint asserts jurisdiction
under 28 U.S.C. §1331 (federal question) and 28 U.S.C.
§1332 (diversity). Diversity jurisdiction, however,
would be unavailable if claims were alleged against state
officials in their official capacities. This is because such
official capacity claims are claims against the state, and
states are not citizens for diversity purposes.
Fourth, plaintiffs' response briefs repeatedly
characterize his claims as individual capacity claims. To
cite just one example here, plaintiff argues that
“Plaintiff's actual claims are against the
Defendant [Precythe] in her individual capacity, ” so
that the Eleventh Amendment is no bar. Doc. no. 43, p. 4.
although the manner in which plaintiff labels his claims does
not always control, in the circumstances of this case it is
clear to the court that only individual capacity claims are
alleged in the amended complaint. Accordingly, from this
point forward, when this order refers to claims against the
defendants, it refers only to individual capacity claims
unless otherwise stated.
shown by the allegations reviewed below, the central
allegations are that plaintiff was not returned to Oklahoma
after he entered a plea in Missouri (despite having filed a
habeas petition in Missouri, seeking his return to Oklahoma);
and that once plaintiff arrived back in Oklahoma, Oklahoma
did not credit him for time served in Missouri.
April 29, 2016, plaintiff entered a plea of guilty in Pawnee
County, Oklahoma, to a DUI charge, as part of a negotiated
plea. He received a five-year suspended sentence to be
supervised by the Oklahoma DOC. Doc. no. 28, ¶13.
that probationary period, on May 27, 2016, plaintiff was
charged in Missouri for possession of a controlled dangerous
substance (marijuana). Id., ¶ 14.
February 7, 2017, while in the Douglas County, Missouri
jail (apparently awaiting trial on the possession charge),
plaintiff signed an extradition release to the State of
Oklahoma. Id., ¶ 15.
extradition release was then sent to Oklahoma along with the
warrant of arrest from Douglas County, Missouri, at which
time the State of Oklahoma became aware of the pending
charges in Missouri. Id., ¶ 16.
was subsequently picked up from the jail in Douglas County,
Missouri, and transported to the Pawnee County jail in
Oklahoma, to face revocation of his suspended DUI sentence.
Id., ¶ 17.
February 24, 2017, plaintiff appeared in state court in
Pawnee County, Oklahoma. That court revoked two years of his
suspended sentence with those two years to be served in the
custody of the Oklahoma DOC, and with the remainder of the
sentence suspended. Id., ¶ 18. A minute order
entered on that date provides that plaintiff is to be
remanded to the custody of Oklahoma DOC “ASAP.”
Id., ¶19. There is no allegation (and
plaintiff's briefs do not contend) that the Oklahoma
sentence stated it was to run concurrently with any Missouri
sentence that might be entered. Nor is there any allegation
(and plaintiff's briefs do not contend) that the Oklahoma
court ordered that plaintiff should receive credit on his
Oklahoma sentence for any time served in Missouri.
his appearance in state court in Pawnee County, Oklahoma,
plaintiff was in the custody of the Pawnee County Sheriff
(defendant Waters), who plaintiff alleges was acting as a
“holding agent” for Oklahoma DOC while plaintiff
awaited transport to an Oklahoma DOC facility. Id.,
10, 2017, the state court in Douglas County, Missouri, issued
a writ of habeas corpus ad prosequendum to secure
plaintiff's appearance there on June 6, 2017, to face the
pending Missouri charges. Id., ¶ 20. Sheriff
Waters, acting as the agent of Oklahoma DOC, then transported
plaintiff to Douglas County, Missouri, on temporary status
pursuant to the Interstate Agreement on Detainers (IAD).
Id., ¶ i.
6, 2017, plaintiff entered a plea of guilty in the Missouri
case and was given a two-year sentence which provided that it
was to run concurrently with his Oklahoma sentence.
Id., ¶ 21.
writ of habeas corpus ad prosequendum which had brought
plaintiff to Missouri was never released. Id.,
¶ 22. Nor was plaintiff transported back to Oklahoma
following his guilty plea in Missouri. Id., ¶
22. Instead, plaintiff was taken to the Missouri DOC where he
was received on June 15, 2017. Id., ¶ 22.
September 27, 2017, while in the custody of Missouri DOC,
plaintiff filed a petition for a writ of habeas corpus.
Id., ¶ 23. The habeas case is No. 17CW-CV00934
in the Circuit Court of Callaway County, State of Missouri.
Id., ¶ 23, n.1. The petition asked the Missouri
court to return petitioner (Mr. Ballandby) to Oklahoma to
finish his Oklahoma sentence, with which his Missouri
sentence was to run concurrently. Id., ¶ 22. A
response brief was filed in the habeas case by the Missouri
Attorney General (id., ¶ 23) on behalf of the
respondent (Fulton Reception and Diagnostic Center, where the
response brief states plaintiff was being
held).That response brief objected to relief.
It argued, among other things, that plaintiff “will
receive credit for every day of imprisonment he serves in
Missouri towards his concurrent Oklahoma sentence”
according to Oklahoma DOC policy. Id., ¶23.
(The amended complaint does not allege the disposition of
plaintiff's petition for a writ of habeas corpus filed in
Missouri, and the publicly available docket sheet reflects no
ruling on the habeas petition.)
served time in Missouri DOC until he was paroled on February
7, 2018. Id., ¶ 23. On that date, Missouri DOC
did not return plaintiff to Oklahoma DOC but instead released
plaintiff. Id. Plaintiff “finally arrived back
in the Oklahoma DOC custody on February 21, 2018.”
Id. (Although the circumstances of plaintiff
arriving back in Oklahoma DOC are not alleged,
plaintiff's briefs indicate he returned to Oklahoma DOC
on his own volition.)
plaintiff's return to Oklahoma DOC from Missouri,
“Plaintiff was informed by the Defendant's
[Allbaugh's] agents that he would not receive credit for
his time served while he was on temporary status in
Missouri.” Id., ¶ uuu. On May 30, 2018,
plaintiff filed a grievance while in the custody of Oklahoma
DOC (apparently complaining that his time served in Missouri
was not being credited on his Oklahoma sentence).
Id., ¶ 24. Plaintiff's grievance was
denied. Id. As grounds for the denial, plaintiff was
informed that “once you left the state of Oklahoma the
time in Missouri is not applied. You [had] not been received
into the Department of Corrections [of Oklahoma] so you were