Wymore vs. Green, No. 06-3395 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 17, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RO BERT LEE W YM OR E, Plaintiff-Appellant, v. No. 06-3395 (District of K ansas) LEROY GREEN, JR., County Sheriff, Kansas City, Kansas and KA THLEEN M . COLLINS, District Court Clerk, Kansas City, Kansas, (D.C. No. 06-CV-3057-SAC) Defendants-Appellees. OR D ER AND JUDGM ENT * Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges. Robert Lee Wymore appeals from the district court s dismissal of his 42 U.S.C. § 1983 claim against various defendants w ho allegedly violated his constitutional rights w hile he w as incarcerated in W yandotte County, Kansas. H e * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. claims that the appellees allowed him to be extradited to Louisiana without proper documentation, detained him without taking him to see a district judge or m agistrate, and refused to docket his court filings. W e review de novo the district court s dismissal for failure to state a claim, Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001), and affirm the district court s judgment. I. In September 2002, M r. W ymore was incarcerated in a Louisiana state prison. As his parole eligibility date approached, he applied for permission to be paroled to Kansas City, Kansas, to live with his wife. In doing so, he signed a document entitled Probation and Parole Application for Compact Services and Agreement to Return, wherein he agreed to comply with the conditions of probation or parole as fixed by both the State[] of Louisiana and the receiving state, and to return at any time to the State of Louisiana when duly instructed by the authorities. R. Doc. 10, Ex. 1. M r. W ymore also waive[d] extradition to the State of Louisiana from any jurisdiction in or outside of the United States where [he] may be found and also agree[d] that [he w ould] not contest any effort by any jurisdiction to return [him] to the State of Louisiana. Id. The Louisiana authorities approved M r. W ymore s application and paroled him to Kansas. In January 2005, M r. W ymore and his then-wife had an argument during which he allegedly made threats of violence against her. She responded by filing a motion for a protective order in W yandotte County District Court; he filed a -2- counter-petition against her. Because the allegations against him, if true, would constitute a violation of M r. W ymore s parole, the Kansas Department of Corrections issued an arrest warrant on January 28, 2005. He was arrested that same day and held in the W yandotte County Detention Center on the parole violation charge and an earlier, unrelated moving-violation charge. W ithin the following week, M r. W ymore made two court appearances. The first occurred on January 31, 2005, when M r. W ymore appeared in the Kansas City, Kansas, M unicipal Court for a hearing on his moving violation charge. The court released him on bond, and the matter was set for trial in February 2005; later, however, that charge was dismissed. The second court appearance occurred on February 2, 2005, when M r. W ymore attended a hearing on his wife s protective-order petition in the W yandotte County District Court. This hearing ended with the court entering an order protecting then-M rs. W ymore from abuse. Six days after this second court appearance, the Kansas Department of Corrections sent M r. W ymore a Statement of Charges/Notice of Preliminary Hearing relating to his alleged parole violation. He attended a preliminary hearing on February 17, 2005, which concluded in a finding of probable cause to believe that M r. W ymore violated the conditions of his parole. Later that same day, the Louisiana Department of Public Safety and Corrections issued a warrant for M r. W ymore s retaking and arrest for violating his Louisiana parole. M r. W ymore remained in KDOC custody until April 19, 2005, when he was taken by -3- an officer stationed at the Elayn H unt Correctional Facility in St. Gabriel, Louisiana, for return to that state. M r. W ymore did not idly pass his days in the W yandotte County Detention Center before he was extradited. From February 3 to April 11, 2005, he made approximately twenty requests to detention center authorities for legal materials. These requests for legal reference materials, case citations, contact information, writing materials, and copies were all granted. He used these materials to file a law suit under 42 U.S.C. § 1983 against (1) Sheriff Leroy Green, Jr., of W yandotte County, for allegedly violating his constitutional rights by incarcerating him for 85 days without taking him before a magistrate judge or district court judge, and by allowing him to be transported from Kansas to Louisiana without a proper extradition request or warrant; (2) the director of the Inter-state Corrections Compact for the State of K ansas, for allegedly acquiescing in M r. W ymore s illegal confinement and extradition; (3) Kathleen Collins, the Clerk of the W yandotte County District Court, for allegedly denying M r. W ymore access to the court; and (4) the director of the Prisoner Transportation Services of America, for allegedly illegally transporting M r. W ymore to Louisiana. The district court ordered Sheriff Green to file a M artinez report responding to M r. W ymore s allegations. See Martinez v. Aaron, 570 F.2d 317, 319 20 (10th Cir. 1978) (holding that courts may order prison officials to investigate allegations in a prisoner s complaint and to file a report summarizing -4- the findings). After receiving and reviewing the report, the district court dismissed M r. W ymore s claims against Sheriff Green and the two unnamed Directors under 28 U.S.C. § 1915(e)(2)(B)(ii), holding that M r. W ymore waived his right to formal extradition proceedings w hen he applied to be paroled in Kansas. The court found no evidence of a violation of due process or equal protection, nor . . . any factual or legal support for [M r. W ymore s] claim of illegal confinement. R. Doc. 13, at 6. The district court also dismissed M r. W ymore s claim against M s. Collins, holding that she was entitled to absolute quasi-judicial immunity for allegedly failing to file M r. W ymore s court documents. II. M r. W ymore raises three arguments on appeal, the first and third of which relate to the dismissal of his claims that he w as illegally extradited. Because M r. W ymore proceeds pro se, we liberally construe his pleadings, see Freeman v. W atkins, 479 F.3d 1257, 1259 (10th Cir. 2007), as arguing both that his extradition was illegal, the same claim he pursued in the district court, and that the extradition waiver he signed as a condition of being paroled to Kansas is void because he was coerced into signing it. See Appellant s Br. 3 8, 13 14. M r. W ymore did not raise the latter claim that his extradition waiver is void before the district court. Though we liberally construe pro se pleadings, our precedent requires us to eschew a new theory that falls under the same -5- general category as an argument presented [before the district court] or . . . a theory that was discussed in a vague and ambiguous way. W ilburn v. M id-South Health Dev., Inc., 343 F.3d 1274, 1280 81 (10th Cir. 2003) (alteration in original) (internal quotation marks omitted). Accordingly, we apply here the rule that [a]n issue is waived if it was not raised below in the district court, W ilburn, 343 F.3d at 1280, and hold that M r. W ymore has waived his claim that he was coerced into signing his application to be paroled in Kansas. Because M r. W ymore s out-of-state parole application and accompanying extradition waiver is valid, we see no reason to disturb the district court s ruling. M r. W ymore waive[d] extradition to the State of Louisiana from any jurisdiction in or outside of the United States where [he] may be found and also agree[d] that [he would] not contest any effort by any jurisdiction to return [him] to the State of Louisiana. R. Doc. 10, Ex. 1. By so doing, he forfeited the statutory protections he sought to invoke in the district court and continues to press on appeal. M r. W ymore s remaining claim on appeal is equally unavailing. He asks us to reverse the district court s grant of absolute quasi-judicial immunity to M s. Collins, the state court clerk, for allegedly refusing to file M r. W ymore s court documents. The district court based its ruling on our unpublished opinion in Colem an v. Farnsworth, 90 F. App x 313 (10th Cir. 2004), where we held that -6- a [court] clerk must have unfettered discretion to review a complaint or other pleadings supporting the issuance of a summons to determine whether the requisite filing requirements have been met and a summons should issue. In such a case, the defense of judicial immunity should generally apply, regardless of procedural error, motive or good faith. To hold otherwise would have a chilling effect on the judicial duties and actions of the clerk, who would be readily subject to suit in the course of performing his or her duties in determining whether a summons should issue. Id. at 317 (citing Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 2002); W hitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000); Smith v. Losee, 485 F.2d 334, 342 (10th Cir. 1973)). W e agree that Coleman, and the published precedent upon which it relies, apply here. Thus, even assuming M s. Collins violated M r. W ymore s constitutional rights, M s. Collins is entitled to absolute quasi-judicial immunity because her actions w ere judicial act[s] . . . having an integral relationship with the judicial process. Id. III. The judgment of the United States District Court for the District of Kansas is AFFIRM ED. Entered for the Court, M ichael W . M cConnell Circuit Judge -7-

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