Heistand v. Crowley, CASE NO. 15-3010-SAC-DJW

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtSam A. Crow, U.S. District Senior Judge
PartiesKENNETH WAYNE HEISTAND, Plaintiff, v. SUSAN CROWLEY, Defendants
Docket NumberCASE NO. 15-3010-SAC-DJW
Decision Date10 September 2015


CASE NO. 15-3010-SAC-DJW


September 10, 2015


The plaintiff Kenneth Wayne Heistand has filed a pro se civil complaint (Dk. 1) pursuant to 42 U.S.C. § 1983 against Susan Crowley who is identified as a parole officer with the State of Kansas. Mr. Heistand alleges he is an inmate at the Jefferson City Correctional Center, Jefferson City, Missouri. He has filed the following motions that are pending: motion for leave to proceed in forma pauperis, (Dk. 2); motion to appoint counsel, (Dk. 3); and motion to expedite proceedings (Dk. 4).

Under 28 U.S.C. § 1915A(a), a district court shall review a prisoner's complaint against a governmental entity or officer or employee of that entity either "before docketing" or "as soon as practicable after docketing." And under § 1915A(b)(1), the court shall dismiss such a complaint if that review reveals a failure to state a claim upon which relief may be granted. See also 28

Page 2

U.S.C. § 1915(e)(2)(B)(ii) (directing courts to dismiss civil action filed by prisoner proceeding IFP "at any time" if court determines action fails to state claim on which relief may be granted). The Tenth Circuit has "explained that § 1915A does not require that process be served or that the plaintiff be provided an opportunity to respond before dismissal." Robertson v. Kansas, 301 Fed. Appx. 786, 2015 WL 4759164 at *2 (10th Cir. Aug. 13, 2015) (citing Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir.2000)).

"Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (citing Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997)). When reviewing the sufficiency of a complaint the Court "presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (liberally construe the allegations of a pro se complaint). The burden remains with the pro se plaintiff to allege facts sufficient to state a cognizable legal claim, "and the plaintiff whose factual

Page 3

allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend his complaint." Hall v. Bellmon, 935 F.2d at 1110. As recently clarified by the Supreme Court, "'a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face.'" Al-Owhali v. Holder, 687 F.3d 1236, 1239 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

In his complaint, Mr. Heistand alleges two counts against the same defendant, Susan Crowley. She is identified as the State of Kansas parole officer who supervised Mr. Heistand under the following circumstances. As alleged, Mr. Heistand was convicted in Missouri on March 24, 1983, of robbery and assault and received a sentence of life imprisonment and five years. In 2003, he was paroled from these Missouri sentences. His parole was apparently supervised in Kansas pursuant to Interstate Compact for Adult Offender Supervision, K.S.A. § 22-4110 et seq. Mr. Heistand alleges Ms. Crowley attempted to deny his parole plan with his parents in Kansas by arbitrarily refusing to do a home inspection. According to the complaint, his parole plan was eventually approved by going to Ms. Crowley's supervisor. The plaintiff does not allege any claim for relief based upon a delay in his plan's approval.

Page 4

As far as conduct related to Ms. Crowley, Mr. Heistand next alleges that he was issued notice of a parol violation on January 8, 2005, in Bourbon County, Kansas, for "domestic assault and battery, possession of methamphetamines, aggravated indecent liberties and assault." (Dk. 1, pp. 3-4). Stating that, "these charges were subsequently dismissed," Mr. Heistand's complaint is with Ms. Crowley's parole violation report that she prepared contemporaneous with these events and that apparently remains in his Missouri parole file. Id. at 4. Mr. Heistand attaches to his complaint a copy of Ms. Crowley's report that is the subject of his claims. (Dk. 1-1).

Ms. Crowley's "Violation Report" on Mr. Heistand is addressed to the "State of Missouri-Parole" and is dated February 15, 2005. Id. The report identifies three violations of release conditions, all of which involve Mr. Heistand being charged with crimes in Bourbon County District Court. The first violation refers to the criminal charges in case #05CR33 for domestic battery and assault allegedly committed on January 8, 2005. This narrative accompanied the first violation:

On 1/8/2005 it was reported to me that Kenny beat his daughter up so bad that she has two loose teeth and several teeth chiped (sic) off. She also has multiple bruises and other injuries that have been photographed by the Bourbon County Sheriff's Department & Charges are being turned over the (sic) the Bourbon County Attorney's Office as of 1/12/2005. Charges were formally filed on /14/2005 on Case #05CR33.

Page 5

(Dk. 1-1). The second violation referred to the criminal charges in case #05CR47 for possession of methamphetamine allegedly committed on January 14, 2005. This narrative accompanied the second violation:

On 1/14/2005 when Mr. Heistand was arrested for Domestic Battery/Assault on his daughter he had Methamphetamines in the front pocket of his jeans. Charges were officially filed & a $20,000 bond was placed on him on 1/28/2005. The Case #05CR47, the charge of Possession of Methamphetamine is considered to be a felony.

(Dk. 1-1). The third violation referred to the criminal charges in case #05CR71 for aggravated indecent liberties and two counts of criminal sodomy allegedly committed on February 11, 2005. This narrative accompanied the third violation:

On 2/11/2005 charges were filed after (sic) Bourbon County District Court after an ongoing investigation in regards to inappropriate behavior with at least one teenage girl. The charges are currently Aggravated Indecent Liberties and 2 Counts of Criminal Sodomy. 1st appearance was on 2/14/2005.

(Dk. 1-1). Ms. Crowley's report concluded with the following comments under the title of "Availability/Recommendations:"

At this time Mr. Heistand is currently in the Bourbon County Jail on the above charges. Missouri has also issued a Warrant as a hold until these charges are disposed of. I strongly recommend that regardless of the outcome of his Kansas charges that Missouri return him to the State of Missouri & impose his sentence. I believe (sic) that he has shown to be a danger to society.

(Dk. 1-1). The complaint attaches only this one report and does not refer to any other reports made by Ms. Crowley to the

Page 6

Missouri parole authorities as being the subject or basis for the alleged claims.

As Count I in his complaint, plaintiff asserts the defendant Crowley violated his federal constitutional rights to equal protection, due process and confrontation by placing "false information into Plaintiff's parole files." (Dk. 1, p. 3). As the supporting facts to this count, the plaintiff alleges that in 2014 he appeared before the Missouri Board of Probation and Parole ("MBPP") and was asked about allegations regarding sexual abuse of his daughter even though these charges were dismissed in 2005. The MBPP subsequently set back his parole for two years. The plaintiff alleges the defendant Crowley provided this report to MBPP as part of his parole file and "intentionally exaggerated an fabricated her reports to the MBPP for the purpose of violating Plaintiff's parole and discouraging reinstatement of parole by the MBPP." Id. at 4. The plaintiff alleges that defendant Crowley's animus is shown in her recommendation that he be returned to Missouri for sentencing regardless of how the Kansas charges were resolved. The plaintiff alleges that he was returned to Missouri in 2005 and that Crowley denied him a right to a hearing in Kansas on these parole violations. The plaintiff asserts that had the hearing been held "it is possible that the false allegations would have

Page 7

been exposed as false and removed from record." Id. at 5. The plaintiff concludes that without earlier hearing the false information remains in the file, creates "a significant risk of prolonging" his incarceration and denies him equal protection and due process as shown in the two-year set back of his parole. Id.

For Count II, plaintiff relies on the same supporting facts and asserts that the defendant Crowley "acted willfully, deliberately, maliciously or with reckless disregard" of his "clearly established" rights to due process and equal protection. The plaintiff expressly alleges a violation of 42 U.S.C. § 1983.

In his request for relief, plaintiff seeks appointment of counsel, removal of the false information from his parole files, damages for mental anguish, and attorneys' fees and costs.

Because Mr. Heistand is a prisoner suing government officials, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and

Page 8

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, 48-49 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT