Long v. Shillinger
| Decision Date | 06 March 1991 |
| Docket Number | No. 89-8091,89-8091 |
| Citation | 927 F.2d 525 |
| Parties | Royal Russell LONG, Plaintiff-Appellant, v. Duane SHILLINGER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Royal Russell Long, pro se.
Josephine T. Porter, Sr. Asst. Atty. Gen., Cheyenne, Wyo., for defendant-appellee.
Before ANDERSON, TACHA and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Plaintiff, who is incarcerated in the Wyoming State Penitentiary, instituted this action against the warden seeking damages for the alleged violation of his civil rights, pursuant to 42 U.S.C. Sec. 1983. Plaintiff alleged that the warden permitted Oklahoma to extradite plaintiff to stand trial on two kidnapping and two felony murder charges without affording him the process due under Wyoming's extradition act, Wyo.Stat. Secs. 7-3-201 to -227. Plaintiff asserted that if he had been afforded the process due him under the extradition act, including the opportunity to file a writ of habeas corpus and have a hearing thereon, he could have presented evidence that would have prevented the extradition. He alleged that as a result of being denied the opportunity to prevent the extradition, he incurred attorney's fees in defense of the Oklahoma charges, as well as expenses for food while incarcerated in the county jail in Oklahoma. 1 In addition, plaintiff's life allegedly was put in jeopardy when an inmate with whom he was transported back to Wyoming tried to escape and momentarily acquired possession of an officer's weapon. Plaintiff sought compensatory damages for the attorney's fees and other expenses he incurred, as well as punitive damages in the amount of $10,000,000.
After the case was at issue, the district court ordered defendant to submit an affidavit setting forth his version of the events recited in the complaint, as well as all pertinent documentation concerning plaintiff's extradition to Oklahoma and subsequent return to Wyoming. After defendant complied with this order and plaintiff responded, the court ordered plaintiff to submit a more definite statement of his damages and documentation thereof. Defendant then filed a motion for summary judgment on the grounds that the eleventh amendment barred any claims against him in his official capacity, and he was entitled to qualified immunity from any claims against him in his personal capacity. Plaintiff filed responses to both the motion for summary judgment and the order for more definite statement.
Thereafter, on October 10, 1989, the district court entered an order denying defendant's motion for summary judgment and entering judgment in favor of plaintiff and against defendant in his official capacity. The court awarded plaintiff nominal damages of one dollar.
On October 21, 1989, plaintiff filed a second response to the order for more definite statement, as well as a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59. Plaintiff asked the court to reconsider the award of nominal damages in light of the documentation of attorney's fees incurred in Oklahoma attached to his second response, and to award him damages in the amount of $150,230 for attorney's fees and $200,000 for pain and suffering. The district court denied plaintiff's motion on October 23, 1989, and this appeal followed. 2
Plaintiff argues on appeal that the district court erred in not appointing counsel to represent him 3 and in awarding him only nominal damages. "[T]he district court has broad discretion to appoint counsel for indigents under 28 U.S.C. Sec. 1915(d), and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights." Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981). In determining whether to appoint counsel, the district court should consider a variety of factors, including the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims. Id. at 887-89. Based upon our review of the record on appeal, we conclude the district court did not abuse its discretion in refusing to appoint counsel for plaintiff under the circumstances of this case.
The basis of plaintiff's claim below was that he was transferred to Oklahoma to stand trial on charges without being advised of his right to file a petition for habeas corpus challenging the extradition and without having a hearing. Pursuant to Wyoming's extradition act, a prisoner shall not be extradited without first being informed of the request for extradition and the crime(s) charged, as well as the right to demand legal counsel. Furthermore, if the prisoner wants to test the legality of the extradition, he must be taken before a judge who shall fix a reasonable time for the prisoner to file a writ of habeas corpus and shall set the time and place for a hearing thereon. Wyo.Stat. Sec. 7-3-210.
Although plaintiff was transferred to Oklahoma pursuant to the Interstate Agreement on Detainers Act, codified in Wyoming at Wyo.Stat. Secs. 7-15-101 to -105, he still was entitled to the rights provided him under Wyoming's extradition act. See Cuyler v. Adams, 449 U.S. 433, 449-50, 101 S.Ct. 703, 712, 66 L.Ed.2d 641 (1981) ().
Based on defendant's affidavit and the documentation he provided concerning plaintiff's extradition, the district court found that defendant violated plaintiff's due process rights prior to extradition. The court then had to determine whether defendant's violation of plaintiff's rights caused plaintiff any injury. See Carey v. Piphus, 435 U.S. 247, 262, 98 S.Ct. 1042, 1051, 55 L.Ed.2d 252 (1978) (). The district court recited that it was "hard pressed to see how plaintiff was injured through the extradition process, including his somewhat eventful return to Wyoming." Rec.Vol. I, Doc. 23 at 6. We agree that plaintiff did not show any injury, though for a different reason than that stated by the district court. See Ware v. Unified School Dist. No. 492, 881 F.2d 906, 909 (10th Cir.1989) (), modified in part, rehearing denied in part, 902 F.2d 815 (10th Cir.1990).
Plaintiff contended he was injured because he would have been able to prevent the extradition if given due process. Specifically, he said he would have presented...
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