Harvey v. Mo. Dep't of Corr., CASE NO. 13-3188-SAC

WALTER LEE HARVEY, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS et al., Defendants.

CASE NO. 13-3188-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: October 31, 2013

MEMORANDUM AND ORDER

This pro se civil complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the United States Penitentiary, Tucson, Arizona. Plaintiff has also filed a Motion to Proceed without Prepayment of Fees (Doc. 2). Having considered all materials filed, the court assesses an initial partial filing fee and gives plaintiff time to submit this fee. In addition, the court finds that the complaint is deficient in several ways and requires plaintiff to cure these deficiencies. If plaintiff fails to pay the part fee and cure all deficiencies within the prescribed time, this action may be dismissed without further notice.

FILING FEE

The fee for filing a civil complaint is $400.00, which includes the statutory fee of $350.00 and an administrative fee of $50.00,or for one granted leave to proceed in forma pauperis it is $350.00.¹ The court has considered plaintiff's Application for Leave to Proceed without Prepayment of Fees, the certificate included therein, and the attached copy of Mr. Harvey's inmate account transactions over the past several months. 28 U.S.C. § 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of the civil action. Having examined the records of plaintiff's account, the court finds that the averages provided in the Case Manager's certificate are clearly incorrect. Thus, the average monthly deposits and average monthly balances have been calculated based upon the actual transactions set forth in plaintiff's exhibit entitled "All Transactions." From these calculations, the court finds that the average monthly deposit during the relevant time period has been $154.20, and the average monthly balance has been $ 44.57. The court therefore assesses an initial partial filing fee of $ 30.50, twenty percent of the average monthly deposit rounded to the lower half dollar. If Mr. Harvey does notsatisfy the filing fee within the time prescribed by the court, this action may be dismissed without prejudice and without further notice.

FACTUAL BACKGROUND

On March 9, 2005, Mr. Harvey filed an application for habeas corpus relief pursuant to 28 U.S.C. § 2241 in this court that was denied.² In its opinion affirming that denial, the Tenth Circuit Court of Appeals succinctly set forth background information pertinent to this case:

In 1983 Mr. Harvey was tried in the United States District Court for the Eastern District of Missouri, and convicted of kidnapping, transportation of a stolen vehicle across state lines, interstate transportation of a female for immoral purposes, and unlawful use of a firearm. See United States v. Harvey, 756 F.2d 636 (8th Cir. 1985). He was sentenced to 120 years' imprisonment. While serving his federal sentence, he was sentenced to death in Missouri state court for committing a murder. Under the authority of 18 U.S.C. § 4082 (1973)(authorizing U.S. Attorney General to designate the place of confinement where a sentence imposed by a federal court shall be served), the U.S. Bureau of Prisons (BOP) transferred him to the Missouri Department of Corrections (MODOC) for concurrent service of his state and federal sentences.

In 1985 Mr. Harvey filed in the United States District Court for the Western District of Missouri an application for habeas relief under 28 U.S.C. § 2241, challenging his transfer to the MODOC. See Harvey v. United States, 615 F.Supp. 1046 (W.D.Mo. 1985). The court denied relief, stating that "it is obvious that the [MODOC] has been appropriately designated pursuant to the authority conferred by Section 4082 as the place of confinement where petitioner's federal sentence shall be served." Id. at1048.

While the § 2241 application was pending, the Missouri Supreme Court reversed Mr. Harvey's death sentence and remanded the case for retrial. On August 2, 1985, the BOP issued a federal detainer for Mr. Harvey's return to federal custody upon completion of his Missouri sentence. Ultimately, however, Mr. Harvey was again convicted and sentenced to life in prison. It also appears that in 1989 he was convicted in Illinois state court on charges of murder and rape.

During his incarceration in state prison, Mr. Harvey was advised of the reason for his placement in the custody of the MODOC. By letter dated December 13, 1999, the BOP informed him:

This is in response to your recent correspondence to this office. Your federal sentence commenced on June 10, 1983. On March 8, 1985, the federal government relinquished primary jurisdiction to the state of Missouri. The Bureau of Prisons (Bureau) designated the Missouri Department of Corrections (MODOC), as the designated institution for service of your federal sentence, thereby making it operate concurrently with your Missouri sentence.

The federal government has a vested interest in your continued incarceration until you have met your obligation in regards to your federal sentence. If you parole from your Missouri state sentence prior to being granted release from your federal sentence, the U.S. Marshals Service will assume custody of you, and a federal institution will be designated for service of the remainder of your federal sentence.

R. Doc. 6, Attach. A, Ex. 4. When Mr. Harvey was paroled by Missouri on March 24, 2004, he was returned to the custody of the BOP to serve the remainder of his federal sentence. He has been incarcerated at the federal penitentiary in Leavenworth, Kansas.

Harvey v. Gallegos, 290 Fed.Appx. 142, 143-44 (10^th Cir. 2008), cert. denied, 129 S.Ct. 2016 (2009). Mr. Harvey's § 2241 petition filedin 2005 was denied based upon the finding that "the record clearly establishe[d] [Mr. Harvey's] continuous service of his federal sentence throughout his extensive criminal litigation in Missouri and Illinois," and that the Western District of Missouri had "previously determined that [his] transfer to the State of Missouri for continued service of [his] federal sentence was lawful and in full compliance with 18 U.S.C. § 4082." Id. at 144. The following is from the federal district court's opinion that was upheld by the Tenth Circuit:

In May 1985 petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Western District of Missouri, alleging that MO-DOC lacked jurisdiction and authority to confine him because his transfer from federal to state custody did not comply with 18 U.S.C. § 4082. See Harvey v. United States, 615 F.Supp. 1046, 1048 (W.D.Mo.1985). . . . In the traverse filed thereafter in his pending federal habeas action, petitioner prayed for his return to BOP custody and sought a protective order to prohibit his placement in the St. Louis County jail for retrial. Id. at 1046-47. The federal court denied habeas relief, stating "it is obvious that the St. Louis County Jail has been appropriately designated pursuant to the authority conferred by Section 4082 as the place of confinement where petitioner's federal sentence shall be served." Id. at 1048. Petitioner filed no appeal from that decision.

Thereafter, petitioner was eventually convicted in Missouri for the murder of Gary Decker, and was convicted in Illinois for the murder and rape of Donna Decker. Following petitioner's return from Illinois to Missouri, Missouri paroled petitioner in 2004 and returned petitioner to BOP custody. Petitioner then filed the instant action, claiming his present federal confinement is unlawful because BOP relinquished all custody and jurisdiction over him when they transferred him to Missouri in 1984, and because federal authorities failed to take any action to assert jurisdiction and custody overhim throughout his extradition between Missouri and Illinois. The court finds no merit to these claims.

First, the record clearly establishes petitioner's continuous service of his federal sentence throughout his extensive criminal litigation in Missouri and Illinois. Second and significantly, a federal court previously determined that petitioner's transfer to the State of Missouri for continued service of petitioner's federal sentence was lawful and in full compliance with 18 U.S.C. § 4082. Petitioner's attempt to now relitigate that claim is rejected, as are petitioner's related claims that BOP somehow waived or relinquished all jurisdiction and custody over him during his prosecutions in Missouri and Illinois on pending charges in those states.

Finding petitioner has demonstrated no valid ground for obtaining relief under 28 U.S.C. § 2241, the court concludes the petition should be dismissed.

Harvey v. Gallegos, 2008 WL 58776, *1-*2 (D.Kan. 2008).

ALLEGATIONS AND CLAIMS

Plaintiff names 4 defendants in the caption of this complaint: Missouri Department of Corrections (MDOC), United States Marshal Service (USMS), Federal Bureau of Prisons (BOP) and United States Department of Justice (DOJ). Elsewhere, rather than the agencies in the caption, he designates the "Directors of the MDOC, the USMS and the BOP as defendants as well as Attorney General of the United States Eric Holder. He asserts jurisdiction under 28 U.S.C. § 1343(a), 42 U.S.C. § 1983, 28 U.S.C. § 1331 and Bivens.³

Plaintiff asserts that his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments have been violated. Asfacts in support, he alleges that he was "illegally released from one jurisdiction to another and because of such is now being illegally detained," that "the defendant (BOP) gave up sole custody" and that the BOP is "trying to enforce a federal sentence" that is "null and void." He also alleges that he has "been kept in prison longer than what he was suppose (sic) to have been."

Plaintiff seeks immediate release from custody. In addition, he...