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Ballandby v. Precythe

United States District Court, W.D. Oklahoma

May 28, 2019

ANNE L. PRECYTHE, personally, but acting in capacity as Director of the Missouri Department of Corrections, et al., Defendants.



         I. Introduction

         This 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.[1] 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.

         All 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]
(2). Mike Waters, Sheriff of Pawnee County, Oklahoma. Doc. no. 35.[3]
(3). Anne L. Precythe, Director of the Missouri Department of Corrections (Missouri DOC). Doc. no. 38.[4]
(4). Eric Schmitt, Attorney General of the State of Missouri. Doc. no. 37.[5]
(5). Christopher Wade, Prosecuting Attorney for Douglas County, Missouri. Doc. no. 31, with supporting brief at doc. no. 32.[6]

         For the 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.

         II. Standards

         The 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.

         Rule 12(b)(1)

         In 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[4] (Matthew Bender 3d ed.).

         Rule 12(b)(6)

         The 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.

         Rule 12(b)(2)

         Plaintiff 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. Id.

         The 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).[7] The minimum contacts necessary for specific[8] 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 1218.

         III. No Official Capacity Claims

         The 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.

         Thus, 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.

         IV. Factual Allegations

         As 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.

         On 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.

         During that probationary period, on May 27, 2016, plaintiff was charged in Missouri for possession of a controlled dangerous substance (marijuana). Id., ¶ 14.

         On February 7, 2017, while in the Douglas[9] County, Missouri jail (apparently awaiting trial on the possession charge), plaintiff signed an extradition release to the State of Oklahoma. Id., ¶ 15.

         The 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.

         Plaintiff 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.

         On 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.

         Following 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., ¶ r.

         On May 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.

         On June 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.

         The 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.

         On 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).[10]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.)

         Plaintiff 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.)

         Upon 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 ...

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