McBride v. Soos

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: GRANT, Senior
• Citation: McBride v. Soos, 512 F.Supp. 1207 (N.D. Ind. 1981)
• Decision Date: 30 April 1981
• Docket Number: No. S 76-151.,S 76-151.
• Parties: Arthur J. McBRIDE, Plaintiff, v. Gary SOOS and Lamar Haney, Defendants.

512 F. Supp. 1207

Arthur J. McBRIDE, Plaintiff, v. Gary SOOS and Lamar Haney, Defendants.

No. S 76-151.

United States District Court, N. D. Indiana, South Bend Division.

April 30, 1981.

Robert L. Justice, Logansport, Ind., for plaintiff.

John D. Ulmer, Goshen, Ind., for defendants.

MEMORANDUM

GRANT, Senior District Judge.

On September 2, 1976, plaintiff Arthur J. McBride filed a pro se civil rights action under 42 U.S.C. § 1983 against two members of the Elkhart County Sheriff's Department. The complaint alleges that the defendants unlawfully seized and transported McBride from Missouri to Indiana in violation of his constitutional rights¹ and state extradition statutes.²

The complaint was dismissed by the district court on January 13, 1977, for failure to state a claim upon which relief could be granted. This action was reversed by the Court of Appeals for the Seventh Circuit which held that "a complaint which charges abuse of the extradition power by noncompliance with applicable law including state law derived from federal law states a cause of action under 42 U.S.C. § 1983." McBride v. Soos, 594 F.2d 610, 613 (7th Cir. 1979) (footnote omitted). A trial was held on the merits of the complaint on July 18, 1979.³

Facts

On December 6, 1974, a warrant was issued by the Justice of the Peace of Elkhart Township County, Indiana, charging McBride with robbery by fear. That same day, McBride was arrested and jailed in Clayton, Missouri, based upon the Indiana warrant which had been relayed to Missouri officials. On December 10, 1974, the Elkhart County Prosecutor filed an information charging McBride with robbery by fear. On December 11, 1974, McBride was charged by indictment in the Elkhart County Superior Court with first degree murder for the December 1, 1974 death of Katherine Whitman. On December 12, 1974, the Magistrate Court of St. Louis County issued a fugitive warrant for McBride's arrest based upon the Indiana charges.

On January 7, 1975, the Governor of Indiana, pursuant to an application for requisition by the Elkhart County Prosecutor, issued a requisition authorizing and empowering his agents to demand and receive McBride from the proper Missouri authorities and return him to Indiana. After examining the extradition request, the Governor of Missouri issued a Governor's Warrant on January 16, 1975, for McBride's arrest and ordered his extradition. On January 24, 1975, the Elkhart Superior Court was informed that McBride had waived extradition. Defendants were then ordered by their superior to travel to Missouri and return McBride to Indiana for trial. Defendants were further told that McBride had waived extradition and that all necessary paperwork was in order. Upon arriving in Missouri, the defendants were met by members of the Clayton County Police Department, who also informed the defendants that McBride had waived extradition. On January 25, 1975, the defendants returned McBride to Indiana.

On November 7, 1975, McBride was convicted of first degree murder and is presently serving a life sentence in the Michigan City Prison in Michigan City, Indiana. As earlier stated, McBride's exclusive claim in this action is under 42 U.S.C. § 1983 and alleges that the defendants violated his civil rights by failing to follow proper state extradition procedures.

McBride's Allegations

McBride contends that the defendants violated a number of procedural safeguards provided under the Missouri adaptation of the Uniform Criminal Extradition Act. First, that the defendants violated § 548.141 which provides that a person arrested "without a warrant upon reasonable information that the accused stands charged in the courts of a state `for certain offenses' must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest...." The evidence shows that McBride was arrested on December 6, 1974, but that a hearing at which a fugitive warrant was issued was not held until December 12, 1974. McBride claims this six day delay violates § 548.141's "all practicable speed" requirement.

McBride's second claim is founded upon § 548.151 which provides that if at the § 548.141 hearing "it appears that the person held is the person charged with having committed the crime alleged and ... that he has fled from justice," the arrested person can be committed by a warrant "for such a time not exceeding thirty days and specified in the warrant...." McBride claims this provision was violated because the December 12, 1974 fugitive warrant failed to specify a defined period of commitment less than 30 days. It merely called for McBride to remain in the custody of Missouri police officials "until he ... shall hence be discharged by due course of law." McBride also contends that his constitutional rights were violated by being held in custody beyond the initial 30 day period specified in § 548.141. Section 548.171 permits a judge or magistrate to recommit the arrested individual for an additional period of time not to exceed 60 days if the Governor's Warrant has not yet issued by the expiration of time specified in the fugitive warrant. McBride claims that no formal action under § 548.171 was ever taken during his approximately 50 day commitment.

McBride's final claim is that the defendants failed to comply with § 548.101 which expressly grants a prisoner subject to extradition a right to a pre-extradition hearing at which he is informed of the receiving state's request for custody, his right to counsel, and his right to apply for a writ of habeas corpus challenging the custody request.⁴ The prisoner is also permitted a "reasonable time" in which to apply for the writ. The opportunity to apply for a writ of habeas corpus is intended to allow the prisoner to challenge the legality of his arrest and the Governor's determination that all the statutory requirements for extradition have been met.

Absence of Personal Involvement

Defendants argue that even if the procedural safeguards provided by Missouri law and set forth above were not followed, it would be improper to hold them liable since they did not become personally involved in this matter until January 24, 1976, when they were directed to travel to Missouri and return McBride. Most of the alleged violations occurred well before that date.

In Adams v. Pate, 445 F.2d 105 (7th Cir. 1971), the Court of Appeals for the Seventh Circuit held that a defendant in a § 1983 action cannot be held liable unless the defendant is personally involved in the denial of a constitutionally protected right or that he has or is charged with having actual knowledge that subordinates under his control are causing or participating in the unlawful denial. Accord, Stringer v. Rowe, 616 F.2d 993, 1000-01 (7th Cir. 1980); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071, 1080 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979); McDonald v. Illinois, 557 F.2d 596, 602 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977). Based upon this principle and under these circumstances, this Court holds that there was no personal involvement by the defendants in the alleged violations of §§ 548.141, 548.151, 548.171. Although the actions of the Missouri officials were instituted by information supplied from Indiana officials, the supplying of said information and the alleged violations themselves did not involve the defendants. The responsibility and duty to comply with these specific Missouri statutes rested entirely and exclusively with Missouri law enforcement officials. Defendants had no relationship to or involvement with the alleged failure to have taken McBride before a judge or magistrate with "all practicable speed" following his warrantless arrest, the failure of the judge to specify a defined period of commitment in the fugitive warrant or the failure of Missouri authorities to have a judge formally recommit McBride after expiration of the initial 30 day maximum term. In sum, McBride presents no evidence which shows that the defendants had any personal involvement in these alleged violations. Absent such involvement, defendants cannot be held liable.

This Court does, however, find sufficient personal involvement by the defendants in the alleged failure to provide McBride a pre-extradition hearing at which he would have an opportunity to file an application for writ of habeas corpus pursuant to § 548.101. This Court agrees with the defendants' basic premise that noncompliance with § 548.101 is the primary duty of Missouri law enforcement authorities. Defendants' argument is strengthened by § 548.111 which makes a misdemeanor the failure of any Missouri officer to comply with the provisions of § 548.101. But there existed a separate and independent duty with the defendants to ensure that McBride received the statutory protections available. Since Indiana extradition procedures are nearly identical to those in Missouri, defendants knew or should have known that § 548.101 needed to be satisfied before McBride could be extradited and if it was not satisfied, the defendants possessed the additional duty to confirm the fact that McBride voluntarily, intelligently and knowingly waived those protections. Defendants contend that McBride did waive extradition and all accompanying statutory safeguards, including § 548.101. This contention needs to now be addressed.

Waiver

Missouri law expressly provides that an arrested person may voluntarily waive all extradition procedures if the waiver is made in the presence of a judge, and if the judge has informed the person of his rights under the statute.⁵ Although a waiver signed in the presence of a judge may be the preferred method, § 548.260(2) contains a proviso that specifically states it is not the exclusive method of securing a valid waiver. It provides in part as follows:

That nothing in this section shall

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