Arthur J. Mcbride, Plaintiff-appellant, v. Gary Soos and Lamar Haney, Individually and As Elkhartcounty Policemen, Defendants-appellees, 594 F.2d 610 (7th Cir. 1979)

This is an appeal from a judgment of the district court dismissing an action under 42 U.S.C. § 1983 brought by plaintiff-appellant Arthur J. McBride for failure to state a claim for which relief can be granted. For the reasons hereinafter stated, we reverse.

BACKGROUND

The facts of this case are straightforward and undisputed. On December 6, 1974, plaintiff was arrested and jailed in Missouri. On December 10, 1974, plaintiff was charged by information with robbery in the Elkhart Superior Court, Elkhart, Indiana. On December 11, 1974, plaintiff was charged by indictment with first degree murder in the same Indiana court. On January 24, 1975, Gary Soos and Lamar Haney, defendants in this action, traveled from Elkhart County to Clayton, Missouri in order to return plaintiff to Elkhart County to face the above charges. Soos and Haney returned to Elkhart County with plaintiff on January 25, 1975 and placed him in the Elkhart County Security Center, Goshen, Indiana. Plaintiff was convicted of first degree murder on November 7, 1975, and is now serving a life sentence in the Michigan City Prison, Michigan City, Indiana.

Plaintiff then filed a Pro se civil rights action under 42 U.S.C. § 1983 against Soos and Haney for allegedly taking plaintiff into custody and taking him to Indiana without complying with extradition procedures. The district court dismissed the complaint for failure to state a claim upon which relief could be granted. On appeal, plaintiff argues that it was error for the district court to dismiss the complaint. Plaintiff also asserts that the district court erred in dismissing the complaint without first ruling on his motion for appointment of counsel to prosecute the action on his behalf.¹  We agree with plaintiff that the district court should not have dismissed the complaint and therefore reverse.

* To maintain a cause of action under § 1983, plaintiff must establish that Soos and Haney, acting under color of state law, deprived him of "any rights, privileges, or immunities secured by the Constitution and laws."²  There is no question that Soos and Haney were acting under color of state law. The crucial question in this case, therefore, is whether plaintiff possessed any rights, privileges, or immunities secured to him by the Constitution and the laws of the United States which were infringed by his removal from Missouri to Indiana by Soos and Haney without compliance with extradition proceedings.³ 

The obligation imposed on states to extradite fugitives from justice within its borders to the state from which he has fled upon proper demand from that state is rooted in the Constitution. Art. 4, § 2, cl. 2.⁴  This constitutional provision is implemented by federal statute, 18 U.S.C. § 3182.⁵  Before an individual can be extradited, the governor of the asylum state must determine: (1) whether the person demanded is substantially charged with a crime; and (2) whether the person demanded is a fugitive from justice from the state making the demand. The first inquiry is a question of law while the second is a question of fact. E. g., Roberts v. Reilly, 116 U.S. 80, 95, 6 S. Ct. 291, 29 L. Ed. 544 (1885); Wirth v. Surles,supra at 322; United States v. O'Brien, 138 F.2d 217, 218 (7th Cir. 1943); United States v. Meyering, 75 F.2d 716, 717 (7th Cir. 1935). These safeguards serve to protect the rights of the alleged fugitive. As this court has stated:

The statute is one involving the substantial rights of citizens, and its essential elements must be strictly followed . . . Only by faithfully following the provisions of the statute may a person be lawfully deprived of his liberty and extradited from an asylum state to another state, there to be tried for the commission of a crime. The alleged fugitive has a right not to be imprisoned or dealt with by the states in disregard of those safeguards provided by the Constitution and statutes of the United States.

United States v. Meyering, supra at 717. (Citations omitted.) Failure to comply with procedural safeguards prior to extradition can be challenged in a Habeas corpus proceeding. Roberts v. Reilly, supra 116 U.S. at 95, 6 S. Ct. 291; Wirth v. Surles, supra at 322.

In addition to procedural protections embodied in the Constitution and the federal statute, the laws of Missouri and Indiana also provide safeguards for alleged fugitives. Under Indiana law, Soos and Haney, as agents of the demanding state, were required to follow certain procedures in obtaining a warrant from the Indiana governor.⁶  Finally, under Missouri law, plaintiff had the right to demand legal counsel and challenge the legality of the arrest by applying for a writ of Habeas corpus.⁷ 

From the allegations of the complaint, which of course we must accept as true,⁸  and the record before us, it appears that none of the procedural protections provided by either federal or state law were followed in this case by Soos and Haney. Under these circumstances where plaintiff has alleged violation of rights protected by federal law, and violation of rights protected by state law derived from federal law, we hold that a complaint which charges abuse of the extradiction power by noncompliance with applicable law states a cause of action under 42 U.S.C. § 1983.⁹  We emphasize, however, that we intimate no views on whether plaintiff will ultimately be able to establish that he has suffered any damages as a result of the actions of Soos and Haney. Cf. Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978).

Plaintiff also alleges that the district court erred in refusing to appoint counsel to prosecute this action. The law is well settled, however, that the appointment of legal counsel in a civil action is a matter within the discretion of the trial court. E. g., Ehrlich v. Van Epps, 428 F.2d 363 (7th Cir. 1970). We hold that the district court did not abuse its discretion in failing to appoint counsel in the instant case.

The judgment appealed from is reversed and remanded for further proceedings consistent with this opinion.