Kelner v. Harvin
| Decision Date | 25 April 2011 |
| Docket Number | CASE NO. 10-3127-SAC |
| Parties | SEAN P. KELNER, Plaintiff, v. ED HARVIN, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Upon screening the complaint in this action, the court entered an Order requiring that plaintiff submit a fully completed motion and affidavit for leave to proceed in forma pauperis (IFP) and to show cause why this action should not be dismissed for failure to state a claim. Plaintiff has filed a second motion to proceed IFP and a Response. Having carefully considered plaintiff's Response together with all materials filed, the court finds as follows.
The court required plaintiff to submit a "fully completed (IFP) motion and affidavit" setting forth all his assets. While the second motion filed by plaintiff in response states that he has cash assets, he does not provide the amount of those assets on the form as required. The court finds that plaintiff has failed to satisfy the filing fee prerequisites in this case and has failed to comply with the court's order to provide complete financial information to support his motion to proceed IFP.
In its screening Order, the court found that the only material facts alleged in the complaint by Mr. Kelner were that he spent 190 days in the Ellis County Jail in 2009 for trial under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. § 59-29a01 et seq.; was housed in general population under the same conditions as criminal inmates; was not able to seek release on bond, and was not afforded the same treatment as already-committed Sexually Violent Predators (SVPs). In his Response, plaintiff does not allege a single additional fact to support his claims of a federal constitutional violation, despite the court's discussion of the many facts he failed to allege to state such a claim. Instead, he simply disagrees with the court's holding that his being housed in a jail pending hearing under the KSVPA, standing alone, is insufficient to state a federal constitutional violation.
In plaintiff's Response, he again argues that the "law is clearly established that the constitutional rights of a person who is civilly committed, or is being tried for civil commitment, are violated if they are placed in any jail or penal facility." In support of this argument, he mainly relies upon Lynch v. Baxley, 744 F.2d 1452, 1458-59 (11th Cir. 1984), a 1984 opinion from another Circuit that this court is not bound to follow. Moreover, the circumstances in Lynch are not entirely analogous to those of Mr. Kelner. Lynch involved the "emergency detention of those who threaten immediate and serious violence to themselves or others" inthe Alabama county jails.1 That court was concerned with "ensuring the least restrictive means of holding people pending commitment proceedings" that were not sexually violent predator proceedings. The Alabama law pursuant to which the involuntary commitment proceedings and emergency detentions in Lynch had been ordered was not the same law as the KSVPA. In sum, Lynch neither requires nor convinces this court to hold that the detention in a county jail of a person in Kansas awaiting trial as an SVP is a per se violation of the U.S. Constitution.
In his complaint, Mr. Kelner argued that his detention violated the KSVPA. He acknowledges in his Response that the KSVPA actually allows for a person being tried thereunder to be held in a county jail. See K.S.A. § 59-29a05(d). He now argues in his Response that this provision of the KSVPA violates Lynch. The court reiterates that this allowance in the KSVPA does not violate Lynch, which is distinguishable, and that even if it did, Lynch is not binding upon this court.
The other federal case cited by plaintiff, in support of his position is Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004). Even if the decision in Blanas is properly interpreted by plaintiff, that court's decision was based upon provisions in the California Penal Code that are not the same as the pertinent provisions in theKSVPA. In any event, decisions of the Ninth Circuit Court of Appeals are not binding upon this court.
This court finds more persuasive the reasoning and holdings in cases like Atwood v. Vilsack, 338 F.Supp.2d 985, 997-98 (S.D. Iowa 2004), based upon an SVP Act that is essentially the same as the one in Kansas. In Atwood, the court held that the detention of a pretrial detainee in a county jail to await civil commitment proceedings pursuant to the SVPA and the denial of bail2 to that detainee, standing alone, did not evince a violation of due process or other federal constitutional rights. Id.; see also Merryfield v. Kansas, 2009 WL 3125470 (D.Kan. Sept. 25, 2009)(unpublished, cited for reasoning).
Plaintiff appears to additionally argue that Lynch establishes that the KSVPA is unconstitutional. The constitutionality of the KSVPA has been upheld against due process and equal protection challenges by the Kansas Supreme Court. In re Care & Treatment of Hay, 263 Kan. 822, 832-34, 953 P.2d 666 (1998); Van Camp v. State, 240 P.3d 627, *1 (Kan.App. Oct. 22, 2010, unpublished)(cited for reasoning). The KSVPA was also thoroughly examined and upheld as constitutional by the United States Supreme Court. Hendricks, 521 U.S. at 346; see also Kansas v. Crane, 534 U.S. 407, 409-10 (1997). The KSVPA, as examined by the U.S. Supreme Court, provided for the confinement of sexually violent predators in a secure facility because they were dangerous to the community. Hendricks, 521 U.S. at 363-64. The Supreme Court was aware that at the time the SVPs in Kansas were held in a segregated unit within the state prison system. More recently, the U.S. Supreme Court upheld a federal statute, under the Necessary and Proper Clause, that allowed a district court to order the civil commitment of a sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. United States v. Comstock, _U.S._, 130 S.Ct. 1949 (May 17, 2010). The "civilly committed" person remained confined at a federal prison, and the Court did not address that the prison as his place of confinement was unconstitutional. Plaintiff complains of the legality of his detention under state authority; however, he has failed to demonstrate that this detention was "contrary to... clearly established Federal law, as determined by the Supreme Court of theUnited States." See Williams v. Taylor, 529 U.S. 362, 404 (2000); see also Allen v. Illinois, 478 U.S. 364, 373 (1986)(the fact that sexually dangerous persons are housed with prisoners in need of psychiatric treatment in a maximum-security facility does not transform the State's intent to treat into an intent to punish). Plaintiff has not presented, and this court has not discovered, any U.S. Supreme Court opinion or controlling Tenth Circuit opinion holding that a person in Kansas for whom probable cause has been found to be tried as a SVP cannot be held in a county jail during trial under the KSVPA.
Plaintiff also claims in his Response that it is clearly established that an SVP in Kansas is entitled to the same protections as all civil committees in Kansas. In fact, the law is to the contrary. See Burch v. Jordan, 2010 WL 5391569 (D.Kan. Dec. 22, 2010)(unpublished, cited for reasoning) . In Van Camp, the Kansas Court of Appeals thoroughly considered the argument of an SVP that he was similarly situated to all other civilly committed patients based upon the wording in the separate and distinctstatutes applicable to Mentally Ill Persons, and for Persons with an Alcohol or Substance Abuse Problem. That court found:
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