Schepp v. Fremont County, Wyo., C87-0292J.

• Decision Date: 09 February 1988
• Docket Number: No. C87-0292J.,C87-0292J.
• Parties: Edward G. SCHEPP, Plaintiff, v. FREMONT COUNTY, WYOMING, a political subdivision of the State of Wyoming; Tim McKinney, sheriff of Fremont County, Wyoming, in his official and individual capacity; and William Eichelberger, county and prosecuting attorney for Fremont County, Wyoming, in his official capacity, Defendants.
• Court: U.S. District Court — District of Wyoming

685 F. Supp. 1200

Edward G. SCHEPP, Plaintiff, v. FREMONT COUNTY, WYOMING, a political subdivision of the State of Wyoming; Tim McKinney, sheriff of Fremont County, Wyoming, in his official and individual capacity; and William Eichelberger, county and prosecuting attorney for Fremont County, Wyoming, in his official capacity, Defendants.

No. C87-0292J.

United States District Court, D. Wyoming.

February 9, 1988.

Stephen L. Pevar, American Civil Liberties Union Foundation, Inc., Denver, Colo., Ronald N. Rogers, Cheyenne, Wyo., for plaintiff.

Edward L. Newell, II, Lander, Wyo., Elizageth Z. Smith, Cheyenne, Wyo., Jeffrey A. Donnell, Worland, Wyo., for defendants.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

JOHNSON, District Judge.

I. FACTS

The material facts in this case are not disputed. On 2 March 1981 an Information was filed in the District Court for the Ninth Judicial District of the State of Wyoming, charging Edward G. Schepp with drawing three fraudulent checks in violation of Wyo.Stat. § 6-3-110 (1977). At his 18 March 1981 arraignment, Mr. Schepp was represented by Donald Hall. After Mr. Schepp pled guilty to the charged offense, Judge Robert Ranck ordered a presentence report and set sentencing for 25 June 1981. Mr. Schepp was then released on his own recognizance.

On 25 June 1981 Judge Ranck sentenced Mr. Schepp to the maximum penalty of one year in the Fremont County Jail; the sentence was suspended to a year of unsupervised probation provided the insufficient funds checks were paid within 30 days. Judge Ranck signed the Judgment and Sentence on 13 July 1981, and it was filed with the clerk of court at Lander, Wyoming, on 17 July 1981. Judge Ranck has his office and residence at Jackson, Wyoming. He regularly attends court at Lander, Wyoming, within the Ninth Judicial District. Mr. Schepp made restitution on one of the three checks.

On 9 July 1982, Travis Moffat, a deputy county attorney, prepared a petition for revocation of Mr. Schepp's probation for failure to make full restitution. This petition was not filed until Monday, 19 July 1982. Judge Ranck set this matter for hearing for 29 July 1982, but vacated that hearing when Mr. Schepp could not be found. On 17 January 1983, Judge Ranck issued a bench warrant for the arrest and return of Mr. Schepp.

Donna Jones is a deputy sheriff for Maricopa County, Arizona. She handles most of the extradition matters for that county. She reports in her affidavit that Mr. Schepp was arrested in that county on 30 October 1984. Mr. Schepp contested extradition on Judge Ranck's outstanding bench warrant and was released on bail during the pendency of the proceedings. On 10 December 1984, Donna Jones's office received a governor's warrant from Wyoming. On 14 January 1985, Donna Jones notified the Fremont County Sheriff's office that Mr. Schepp could not be located at the address he gave.

On 16 May 1986, Mr. Schepp was again arrested in Maricopa County, on charges of fictitious license plates. On 20 May 1986, Mr. Schepp appeared before Judge Ryan, Superior Court of Arizona, Maricopa County. Mr. Schepp was then advised that he had ten days in which to file a writ of habeas corpus to contest the legality of the extradition. Mr. Schepp did not contest legality of the extradition by filing a writ.

On 1 June 1986, at about 9:15 P.M. Mr. Schepp arrived at the Fremont County Jail at Lander, Wyoming, from Arizona. The next morning Mr. Schepp was served with a copy of the bench warrant, and the Fremont County Attorney's office was advised that Mr. Schepp was in jail. On 5 June 1986, the jailer informed Sheriff Tim McKinney that Mr. Schepp had written a grievance and wished to speak with Sheriff McKinney. At about 8:30 A.M. that day, they spoke and Sheriff McKinney advised Mr. Schepp that he did not have a right to a trial within seventy-two hours. Sheriff McKinney also informed him that he had no authority to schedule court hearings for Judge Ranck, but provided him with a phone. Mr. Schepp had previously made phone calls on 1 June 1986 and 4 June 1986. On 5 June 1986, he called Judge Ranck's office at Jackson, Wyoming. Mr. Schepp got no further than Judge Ranck's secretary. The county attorney's office some time later advised Sheriff McKinney that Judge Ranck had set a hearing on 23 June 1986 when Judge Ranck was scheduled for court hearings in Lander. On 19 June 1986, a written order to this effect was served upon Mr. Schepp.

At the 23 June 1986 hearing, Mr. Schepp stated that he needed an attorney to win before a jury. Judge Ranck informed him that he was not entitled to a jury trial and noted that Mr. Schepp had admitted the allegations in the petition to revoke probation. Judge Ranck denied appointed counsel.

Judge Ranck then revoked Mr. Schepp's probation and remanded him to the custody of the sheriff for the sentence that was originally imposed. Mr. Schepp then explained to Judge Ranck that he had a ten year old son with brain cancer. In substance Schepp claimed that financial pressures from his son's illness had prevented him from making restitution on time. He also assured the court that a check was being mailed from Phoenix by express mail that would cover the outstanding checks that he was originally charged with having drawn. With these circumstances in mind, Judge Ranck agreed to suspend Mr. Schepp's sentence to time served upon arrival of the Phoenix check and payment of the insufficient funds checks. This condition was soon satisfied and Mr. Schepp was released from custody.

II. AMENDED COMPLAINT

By his amended complaint, Mr. Schepp sues under 42 U.S.C. § 1983 for an alleged violation of his sixth, eighth, and fourteenth amendment rights. He asserts liability against Sheriff McKinney and the present county attorney, Eichelberger, on grounds of reckless conduct exhibited by a callous indifference to Mr. Schepp's constitutionally protected rights. He asserts liability against Fremont County for failure to instruct, supervise, and control the individual defendants and for failure to properly supervise and control the operation of the Fremont County Jail.

Mr. Schepp seeks compensatory damages from Fremont County, Sheriff McKinney (in his individual and official capacity), and County Attorney Eichelberger (in his official capacity). Punitive damages are sought against Sheriff McKinney. A declaratory judgment under 28 U.S.C. §§ 2201, 2202 is sought as to violation of Mr. Schepp's federal constitutional rights. Finally, Mr. Schepp seeks attorney's fees and costs under 42 U.S.C. § 1988.

III. REDRESS UNDER 42 U.S.C. § 1983

A party alleging a civil rights violation under section 1983 must prove that one acting under color of law deprived him of a federally secured right. 42 U.S.C. § 1983. Violation of a state law ordinarily is not cognizable under section 1983. It is cognizable, however, when a state statute supplies the basis for the claim of a constitutional right—for example, state law creates the property interests that the fourteenth amendment protects. See, e.g., Davis v. Scherer, 468 U.S. 183, 193, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984); Arcoren v. Peters, 829 F.2d 671, 676-77 (8th Cir.1987); Myers v. Morris, 810 F.2d 1437, 1470 (8th Cir.1987); Pollnow v. Glennon, 757 F.2d 496, 501 (2nd Cir.1985).

IV. THE FOURTEENTH AMENDMENT: UNTIMELY INITIATION OF REVOCATION OF PROBATION PROCEEDINGS

At the time of Mr. Schepp's revocation hearing, Wyoming law concerning timeliness of revocation proceedings was as follows:

The period of probation or suspension of trial or sentence and the conditions thereof shall be determined by the court and may be continued or extended. Upon the satisfactory fulfillment of the conditions of suspension of trial or sentence or probation the court shall by order duly entered discharge the defendant. At any time during the period of suspension of trial or sentence or probation, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of trial or sentence. As soon as practicable after the arrest the court shall cause the defendant to be brought before it and may proceed to deal with the case as if no suspension of trial or sentence or probation had been ordered.

Wyo.Stat. § 7-13-304 (1977).¹

In Lackey v. State, 731 P.2d 565 (Wyo. 1987), the Wyoming Supreme Court interpreted this statute, focusing on the key language "during the period of probation." The court observed that "while this section obviously does not require that revocation proceedings be completed within the probationary period, it does require that such proceedings be initiated during the period." Id. at 568. Therefore, the court implicitly recognized that a warrant could come after the imposed probationary period had run provided that a petition for revocation had come before then.

Under the rule of Lackey, the revocation proceedings against Mr. Schepp were untimely. This is so since the petition for revocation was filed after Mr. Schepp's one-year probation had run. Not surprisingly, Mr. Schepp relies heavily on Lackey. For two reasons, the court finds that Lackey does not control this case. First, Lackey was decided months after Mr. Schepp's revocation hearing. Second, the statute that it interpreted was not clear on its face. As noted by Lackey's two dissents, the court could have read the statute in such way that the initiation of proceedings against Mr. Schepp would have been timely. Under two conditions, Justice Brown was willing to declare revocation proceedings timely even though commenced after the imposed probation had run. First, the probation violation must have occurred while the probation period was running, and second, the proceedings must have been commenced within a reasonable time after the stated probationary period ends. Id. at 569. Defendants cannot be faulted for proceeding according to...