Petition for Writ of Certiorari — Bough v. Ramirez

ALEXANDER L. STEVAS,

In THE

Supreme Court of the Anited States

Octosper Term, 1984

VERNAL BOUGH, THOMAS LLOYD,

and EARL HOWARD,

Petitioners,

v.

PATRICK RAMIREZ,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BAKER & McKENZIE

130 East Randolph Drive

Chicago, Illinois 60601

(312) 861-2819

Attorneys for Petitioners

Vernal Bough,

Thomas Lloyd, and Earl Howard

Of Counsel:

Francis D. Morrissey *

Geratp L. MaatmMan, Jr. * Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

1. Whether policemen “subject” a criminal defendant

to the deprivation of his constitutional rights within the

meaning of 42 U.S.C. § 1983 when policemen fail to in-

tervene at the request of the criminal defendant to pre-

vent an alleged illegal trial conducted by a county pros-

ecutor and state court judge; and

2. Whether policemen may be mulcted in damages

under 42 U.S.C. § 1983, for failing to prevent an alleged

illegal criminal trial over which the policemen have no per-

sonal responsibility or control, whenever a criminal defen-

dant protests that he is about to be illegally tried and

prosecuted by a state court judge and a county prosecutor

in alleged violation of Article V(d) of the Interstate Agree-

ment on Detainers.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

TABLE OF AUTHORITIES .................

ee ET eksteivsivcreansseweeees

REASONS FOR GRANTING THE WRIT:

THE BROAD THEORY OF § 1983 LIABILITY

ADOPTED BY THE SEVENTH CIRCUIT IS IN-

CONSISTENT WITH THE DECISIONS OF THIS

COURT AND OF OTHER COURTS OF APPEALS

IN REQUIRING PERSONAL RESPONSIBIL-

ITY ON THE PART OF PUBLIC OFFICIALS

BEFORE MAKING THEM ACCOUNTABLE IN

S ROUS BUTI cccnccccctocscensesesunnse

CENT on senevevedepess eee

PAGE

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TABLE OF AUTHORITIES

Cases

Baker v. McCollan, 443 U.S. 186 (1979) ....... 8

Butz v. Economou, 438 U.S. 478 (1978) ....... 13

Douglas v. City of Jeannette, 319 U.S. 157 (1948) .. 12

Frisbie v. Collins, 342 U.S. 519 (1952) ........ 10

Harris v. County of Racine, 512 F. Supp. 1273

CE EE rr eee eee 12

Houghton v. South, 743 F.2d 1438 (9th Cir. 1984) .. 9

In Re Order For Indiana Bell Telephone to Dis-

close Records, 409 N.E.2d 1089 (Ind. 1980) .... 11

Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.

1983), cert. denied, ___. U.S. ___, 79 L.Ed.2d

gE ne er 13

Maine v. Thiboutot, 448 U.S. 1 (1980) ........ 13

Martinez v. California, 444 U.S. 277 (1980) .... 8,12

McGruder v. Necaise, 733 F.2d 1146 (5th Cir.

ee igi ak se bck ee a seKS SO ne ves 11

Monell v. Department of Social Services, 436 U.S.

EE 8

Parratt v. Taylor, 451 U.S. 527 (1981) ........ 13

Pierson v. Ray, 386 U.S. 547 (1967) .......... 12

Pulliam v. Allen, ___. U.S. ___, 104 S.Ct. 1970

Ce ete hes ye Cone kere reeerseasenes 13

iv

Ramirez v. State of Indiana, 455 N.E.2d 609 (Ind.

App. 2d Dist. 1983), cert. granted, 53 U.S.L.W.

3324 (U.S. Oct. 30, 1984) (No. 84-5059) ..... 10, 11, 12

Rizzo v. Goode, 423 U.S. 362 (1976) ........ 8, 10, 11

Triplett v. Azordegan, 570 F.2d 819 (8th Cir.

SEE ck 0n 04 Vice Vebeadtiedawans buee eae s s 9

Wright v. City of Ozark, 715 F.2d 1513 (8th Cir.

EY 4a VAC RbUCLECAES BOOMER AREER CEEOL chaos 11

Younger v. Harris, 401 U.S. 37 (1971) ........ 11

Statutes

Pe RC OE hb acss anos d aes eecosuaees passim

Se EV EPOPT TT TT Tr rere rT re verre 11

In THE

Supreme Court of the United States

OcroserR TERM, 1984

VERNAL BOUGH, THOMAS LLOYD,

and EARL HOWARD,

Petitioners,

Vv.

PATRICK RAMIREZ,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners Vernal Bough, Thomas Lloyd, and Earl

Howard respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit. The Court of

Appeals entered an order on August 22, 1984, reversing

the judgment of the United States District Court for the

Southern District of Indiana, which had dismissed the

respondent’s Complaint at Law.

wiles:

OPINIONS BELOW

The opinion of the Court of Appeals reversing the de-

cision of the District Court is unreported (Appendix A,

infra). The opinion of the District Court dismissing respon-

dent’s Complaint at Law is also unreported (Appendix B,

infra).

JURISDICTION

The Court of Appeals entered judgment on August 22,

1984, and denied a timely petition for rehearing on Sep-

tember 21, 1984 (Appendix C, infra). Petitioners filed this

petition for a writ of certiorari within ninety days. Peti-

tioners invoke the jurisdiction of this Court under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

Section 1 of the Civil Rights Act of 1871, 42 U.S.C.

§ 1983, and Article V(d) of the Interstate Agreement on

Detainers, I.C. 35-33-10-4, sre set forth in Appendix E,

infra.

RN rR

sili

STATEMENT OF CASE

ee

Petitioners Bough, Lloyd, and Howard seek review of

the judgment and memorandum opinion of the Court of

Appeals, which reversed the judgment of the District

Court dismissing the respondent’s Complaint at Law.

Respondent Patrick Ramirez filed a complaint pursuant

to 42 U.S.C. § 1983 against petitioners in the United

States District Court for the Southern District of Indiana.

(See Plaintiff's Complaint at Law, set forth in Appendix

D, infra). The complaint alleged that Fred G. Osborne,

the prosecutor of Howard County, Indiana, prepared and

lodged a detainer against respondent pursuant to the

Interstate Agreement on Detainers, I.C. § 35-33-10-4

(hereinafter “IAD”). Prosecutor Osborne lodged the de-

tainer with the warden of the Michigan prison where

respondent was incarcerated. Prosecutor Osborne sought

the return of respondent to Indiana on the ¢etainer to

face felony charges on two counts of dealing in marijuana,

under Howard Superior Court Cause No. 470.

Prosecutor Osborne also sent a Request for Temporary

Custody to the warden of the Michigan prison. The

Honorable Carl E. Van Dorn, a judge of the Howard

County Superior Court, reviewed, approved, and signed

the “Request for Temporary Custody.” The request listed

three outstanding felony charges against respondent for

dealing in marijuana, under Howard Superior Court Cause

No. 424.

On July 21, 1981, Bough and Lloyd, as officers of the

Sheriff's Department of Howard County, transported the

respondent from Michigan to Howard County, Indiana.

Respondent’s transfer was based on the detainer lodged

a an

by Prosecutor Osborne and a bench warrant issued by

Judge Van Dorn for respondent’s arrest. Respondent had

waived his right to a pretransfer hearing to challenge his

return to Howard County, Indiana.

On July 23, 1981, respondent. appeared before a judge

of the Howara County Superior Court. Respondent ap-

peared for the purpose of entering a plea of guilty to the

criminal charges in Cause No. 470. At that time, Prose-

cutor Osborne and the state court judge informea »sspon-

dent that the State of Indiana intended to prosecute

respondent not only for the felony charges in Cause No.

470, but also for the felony charges pending against

respondent in Cause No. 424.

Respondent informed the state court judge that Prose-

cutor Osborne had not lodged a detainer seeking respon-

dent’s return for the criminal charges pending in Cause

No. 424. Respondent also informed the state court judge

that respondent would have contested the transfer had

he known of the intention of the State of Indiana to pros-

ecute respondent for the criminal charges in Cause No.

424. Nonetheless, in addition to accepting respondent’s

plea of guilty to the criminal charges in Cause No. 470,

the state court judge proceeded to entertain the felony

charges against respondent in Cause No. 424.

Respondent had been held in the Howard County Jail

by the State of Indiana while awaiting trial un the criminal

charges in Cause No. 424. During this period, respondent

notified Bough and Lloyd, as well as Howard, sheriff of

the Howard County jail, that the State of Indiana was

about to prosecute respondent in apparent violation of Ar-

ticle V(d) of the IAD. Respondent advised petitioners that

the State of Indiana would violate Article V(d) of the IAD,

because Prosecutor Osborne had not listed the felony

ACER, Re eee RN ROOD

|

=

charges in Cause No. 424 in the detainer; respondent’s

criminal trial was based on those charges. Respondent re-

quested petitioners—three policemen—to take “appropriate

action” to “rectify” the apparent violation of the IAD (see

Appendix D).

On May 17, 1982, a jury found respondent guilty of the

criminal charges in Cause No. 424. On June 8, 1982, the

state court judge sentenced respondent to a five-year term

on each of the counts in Cause No. 424, to be served con-

currently with one another, but consecutively to the sen-

tence imposed by the state court judge on the two counts

in Cause No. 470.

Respondent alleged that petitioners were accountable

under 42 U.S.C. § 1983 for their failure to prevent the

criminal prosecution. Respondent alleged that Prosecutor

Osborne and the state court judge violated Article V(d)

of the LAD, since that provision provides that “temporary

custody . . . shall be only for the purpose of permitting

prosecution on the charges contained in one or more un-

tried indictments, information or complaints which form

the basis of the detainer. . . .” I.C. § 35-33-10-4. Respon-

dent alleged that petitioners had a legal duty under In-

diana state law “to take appropriate action to rectify the

violation” of the IAD pursuant to I.C. § 35-33-10-4. This

state law provision provides that “[aJll courts, depart-

ments, agencies, officers, and employees of this state...

are hereby directed to enforce the agreement on detainers

and to cooperate with one another and with other party

states in effectuating its purposes.” I.C. § 35-33-10-4. Re-

spondent alleged that petitioners were negligent in per-

forming their alleged duty to enforce the provisions of Ar-

ticle V(d) of the IAD, inasmuch as petitioners failed to

prevent the prosecution of respondent on criminal charges

not listed in the prosecutor’s detainer.

a a

<ifjeo

On July 28, 1983, petitioners filed their answers to the

respondent’s § 1983 complaint. Petitioners denied all

substantive allegations, and asserted that respondent’s

complaint failed to state a cause of action. On August 19,

1983, the district court dismissed respondent’s complaint

for failure to state a claim upon which relief could be

granted. The district court held as a matter of law that

petitioners were not responsible for the alleged illegal

prosecution of respondent on charges not specifically listed

in the detainer documents. The district court reasoned

that petitioners were responsible only for the custody of

respondent, and that the state court judge and the coun-

ty prosecutor were solely responsible for the preparation

of the detainer documents and the subsequent criminal

trial and conviction of respondent.

Respondent appealed to the Seventh Circuit. On August

22, 1984, the Court of Appeals reversed the judgment of

the district court. In so deciding, the Court of Appeals

determined that the State of Indiana had violated Arti-

cle V(d) of the IAD by subjecting respondent to a trial

on the criminal charges in Cause No. 424, since Prosecutor )

Osborne had not listed those charges in the detainer

lodged against respondent.

The Court of Appeals further determined that Article

V(d) invests in criminal defendants a substantive right to

be tried only on charges listed in the detainer lodged

against them. The Court of Appeals held that this substan-

tive right is secured by the laws of the United States,

and thus enforceable by 42 U.S.C. § 1983. The Court of

Appeals reasoned that petitioners were accountable to re-

spondent under § 1983, since “we are not persuaded that

none of these defendants [petitioners] would have a duty

to take action to prevent or remedy such a violation [of

the IAD].”

_

REASONS FOR GRANTING THE WRIT

THE BROAD THEORY OF § 1983 LIABILITY ADOPTED

BY THE SEVENTH CIRCUIT IS INCONSISTENT WITH

THE DECISIONS OF THIS COURT AND OF OTHER

COURTS OF APPEALS IN REQUIRING PERSONAL RE-

SPONSIBILITY ON THE PART OF PUBLIC OFFICIALS

BEFORE MAKING THEM ACCOUNTABLE IN § 1983

ACTIONS.

The Court of Appeals stated in its opinion that petition-

ers were accountable under § 1983 to respondent, because

“(we are not persuaded that none of these [petitioners]

would have a duty to take action to prevent or remedy

a violation [of the IAD].” (Appendix A, infra, p. A-4). The

Seventh Circuit nonetheless declined to explain how three

policemen could prevent the prosecution of respondent by

the county prosecutor, stop the adjudication of the crimi-

nal charge in Cause No. 424 by the state court judge,

or rectify the apparent violation of Article V(d) of the

IAD.

The Seventh Circuit below construed § 1983 to impose

a legal duty upon policemen to monitor criminal prosecu-

tions and to prevent illegal criminal trials. A breach of

this duty gives rise to a § 1983 cause of action, notwith-

standing the lack of unconstitutional conduct by policemen,

and despite the fact that policemen have no personal re-

sponsibility for or control over criminal prosecutions—a

process over which prosecutors and judges have exclusive

control. Since policemen do not have personal responsibil-

ity for criminal prosecutions, the decision below renders

policemen vicariously liable for the unconstitutional acts

of state court judges and county prosecutors. For this

reason, the decision of the Seventh Circuit conflicts with

the precedents of this Court that reject vicarious liability

as a basis of accountability under § 1983.

-

In construing the “subjects, or causes to be subjected”

language of § 1983 to exclude a personal responsibility re-

quirement, the Seventh Circuit below takes a position

diametrically opposite to the precedents of this Court

that have established that a public official is not account-

able under § 1983 unless a causal connection exists be-

tween the conduct of the public official and the depriva-

tion of the plaintiff's rights. Martinez v. California, 444

U.S. 277, 285 (1980); Rizzo v. Goode, 423 U.S. 362, 371

(1976). This Court has thus held that a § 1983 claim can-

not be predicated against a public official (or entity) who

has not participated in conduct causing the deprivation

of the plaintiff's constitutional or federal right, or against

a public official (or entity) who has had no responsibility

for the acts causing the deprivation of the plaintiff’s

rights. Baker v. McCollan, 443 U.S. 136, 143-47 (1979);

Monell v. Department of Social Services, 436 U.S. 658,

690-94 (1978). The Seventh Circuit’s interpretation of the

“subjects, or causes to be subjected” language in the deci-

sion below fails to accord to this Court’s holdings that

a defendant must have a personal involvement in the

plaintiffs constitutional deprivation to be accountable

under § 1983.

The decision below is also in direct conflict with the

holdings of the Courts of Appeals for the Eighth and

Ninth Circuits. Both of these Circuits have held that only

state court judges and prosecutors can “subject” a crimi-

nal defendant to the deprivation of rights within the

meaning of § 1983 in the context of an alleged illegal or

unconstitutional criminal trial; both Courts of Appeals has

affirmed Rule 12(bX6) dismissals of § 1983 claims against

defendants who had no personal responsibility over the

criminal prosecutions alleged to have caused plaintiffs to

be deprived of their constitutional rights.

a - —-

alien

In Houghton v. South, 743 F.2d 1438 (9th Cir. 1984),

the Ninth Circuit held that a § 1983 action could not be

asserted by a criminal defendant against the director of

a state mental institution for the alleged unconstitutional

commitment of the criminal defendant by a state court

judge. The Ninth Circuit held that since the criminal de-

fendant had been adjudged mentally ill and committed to

the mental institution by a state court judge, the criminal

defendant’s § 1983 claim against the director of the state

mental institution failed to state a cause of action. Id. at

1439. As the Ninth Circuit reasoned in Houghton:

[The criminal defendant’s] section 1983 claim with

— > the manner in which he was committed

is di toward the wrong official. [The director

of the mental institution] had nothing to do with that.

[The criminal defendant] was committed by a judge

who, incidentally, is entitled to absolute immunity

from section 1983 suits. This claim against [the direc-

tor of the mental institution] was properly dismissed.

Id. Unlike the opinion of the Seventh Circuit below, the

Ninth Circuit in Houghton held that only those personal-

ly responsible for and in control of criminal prosecutions

can “subject” criminal defendants to the deprivation of

constitutional rights within the meaning of § 1983.

Similarly, in Triplett v. Azordegan, 570 F.2d 819 (8th

Cir. 1978), the Eighth Circuit held that a § 1983 action

could not be asserted by a criminal defendant against a

former county attorney where the alleged unconstitutional

conviction of the criminal defendant was obtained by a

different county prosecutor. The Eighth Circuit held that

as the defendant “was in no way involved in [the plain-

tiff’s] trial and had no authority over the persons in

charge of the prosecution of [the plaintiff],” the defendant

could not be accountable under § 1983, since he was not

personally involved in causing the deprivation of the plain-

alin.

tiff's constitutional rights. Jd. The Eighth Circuit in

Triplett, contrary to the Seventh Circuit below, construed

§ 1983 to impose damages upon public officials personal-

ly involved in the deprivation of the plaintiff's constitu-

tional rights; in the context of an alleged unconstitutional

criminal prosecution, a § 1983 cause of action does not lie

against a public official who was not involved in the trial

and who had no authority over the persons in charge of

the criminal prosecution.

Petitioners, three policemen, had no statutory authority

or practical ability to prevent or stop the alleged illegal

criminal prosecution of respondent. Although a public of-

ficial is accountable under § 1983 in certain circumstances

for his failure to correct the unconstitutional conduct of

his subordinates, the “subjects, or causes to be subjected”

language of § 1983 has never been interpreted to hold a

public official liable for the acts of other public officials

over which he has no control. Rizzo v. Goode, 423 U.S.

362 (1976).

The requisite control and personal responsibility require-

ment is absent in the instant case, because policemen can-

not control or influence prosecutors or state court judges

in their decisions to prosecute. When respondent sought

dismissal of the felony charges not enumerated in the de-

tainer documents during his criminal trial, the state court

judge held that jurisdiction over respondent was not

defeated by the failure of the county prosecutor to file

a detainer on those charges. The Court of Appeals of In-

diana for the Second District affirmed the trial court’s

ruling and respondent’s conviction on the basis of this

Court’s decision in Frisbie v. Collins, 342 U.S. 519, 522

(1952); this Court has recently granted a petition for cer-

tiorari to determine whether the state court had juris-

diction to try respondent. See Ramirez v. State of In-

diana, 455 N.E.2d 609 (Ind. App. 2d Dist. 1983), cert.

=.

granted, 58 U.S.L.W. 3324 (U.S. Oct. 30, 1984) (No.

84-5059). Section 1983 has no logical parameters if police-

men have a duty to ensure that state court judges cor-

rectly exercise their jurisdiction over criminal defendants;

the Seventh Circuit’s holding is all the more incongruous

if this Court should determine that the state court judge’s

ruling on jurisdiction was based on bad law.

In Indiana, as in other states, the process of criminal

prosecution is controlled exclusively by prosecuting at-

torneys and state court judges. See I.C. § 35-34-1-1(a); In

Re Order For Indiana Bell Telephone to Disclose Records,

409 N.E.2d 1089, 1091 (Ind. 1980). Petitioners were under

a duty imposed by state law to keep respondent in jail,

1.C. § 36-8-10-9(4), (7); to leed all orders of the county

prosecutor in holding respondent, I.C. § 35-44-3-7; and to

retain custody of respondent pending further order of the

state court judge, I.C. § 35-33-10-2. Petitioners were

powerless to intervene in respondent’s criminal trial, see,

e.g., McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir.

1984) (“the decision to initiate, maintain, or dismiss crimi-

nal charges is at the core of the prosecutorial function”),

but under the Seventh Circuit’s holding, petitioners are

to be mulcted with § 1983 damages despite their lack of

personal responsibility for respondent’s criminal prose-

cution.

It is logically inconsistent to hold that law enforcement

officials have no constitutional duty to prevent a rape,

Wright v. City of Ozark, 715 F.2d 1513 (8th Cir. 1983),

or to eliminate police misconduct, Rizzo v. Goode, 423 US.

362 (1976), while at the same time holding that police-

men are obligated by the Constitution or federal law to

prevent alleged illegal criminal prosecutions. Since fed-

eral courts hesitate to enjoin or correct allegedly illegal

prosecutions by state officials absent extraordinary cir-

cumstances, see Younger v. Harris, 401 U.S. 37 (1971);

= Sl

Douglas v. City of Jeannette, 319 U.S. 157 (1948), it is

incongruous to require that policemen interfere with the

acts of prosecutors and the decisions of judges in state

criminal proceedings.

CONCLUSION

This Court has made clear “that not every injury in

which a state official had played some part is actionable

under [§ 1983].” Martinez v. California, 444 U.S. 277, 285

(1980). In contrast, the decision below reflects an inten-

tion to construe § 1983 without any limitation as to a per-

sonal responsibility requirement. The lot of policemen is

indeed unhappy if they must choose between dereliction

of their duties as policemen, or suffer inclusion in § 1983

actions by any aggrieved prisoner complaining of his con-

finement, the terms of his bail, or the course of his

criminal trial. Cf Pierson v. Ray, 386 U.S. 547, 555 (1967).

The Seventh Circuit’s decision will create confusion in the

differentiation of responsibilities of policemen as opposed

to prosecutors and judges. The public interest in efficient

governn.ent will be impaired, for the portent of the deci-

sion below underscores the observation that “civil rights

litigation has become almost an occupational hazard of

public life.” Harris v. County of Racine, 512 F. Supp.

1273, 1275 (E.D. Wis. 1981).

Petitioners urge this Court to grant their petition for

a writ of certiorari to provide guidance to public officials

and lower federal courts. In addition, this Court has the

opportunity to consider petitioners’ claims in tandem with

respondent’s appeal of the propriety of his criminal con-

viction. Ramirez v. State of Indiana, 455 N.E.2d 609 (Ind.

App. 2d Dist. 1983), cert. granted, 53 U.S.L.W. 3324 (U.S.

Oct. 30, 1984) (No. 84-5059).

-. ee atom

_

Finally, this case provides this Court with the oppor-

tunity to clarify the issue left open in Parratt v. Taylor,

451 U.S. 527 (1981)—the proper basis and ultimate scope

of § 1988 liability. Two members of this Court have

recently noted that the Court should attempt to resolve

the perplexing issue of determining the outer bounds of

§ 1988 liability. Jackson v. City of Joliet, 715 F.2d 1200

(7th Cir. 1983), cert. denied, ___ U.S. ___, 79 L.Ed.2d

720 (1984) (White, J., and Rehnquist, J., dissenting from

denial of cert.). Moreover, the propriety of extending

§ 1988 liability to public officials without citation of any

single statutory or case law authority, as in the decision

below, is contrary to sound judicial decision-making, espe-

cially when § 1988 suits filed by prisoners now constitute

a significant percentage of federal trial dockets. See

Pulliam v. Allen, ___ U.S. ___, 104 S.Ct. 1970, 1982

(1984) (Powell, J., dissenting); Maine v. Thiboutot, 448 US.

1, 27 n.16 (1980); Butz v. Economou, 438 U.S. 478, 526

(1978) (Rehnquist, J., concurring in part and dissenting

in part). For these reasons, petitioners request this Court

to issue a writ of certiorari to correct the erroneous and

unprecedent holding of the court of appeals.

Respectfully submitted,

BAKER & McKENZIE

130 East Randolph Drive

Chicago, Illinois 60601

(312) 861-2819

Attorneys for Petitioners

Vernal Bough,

Thomas Lloyd, and Earl Howard

Of Counsel:

FRANCIS D. MORRISSEY*

GERALD L. MAATMAN, JR. * Counsel of Record

APPENDICES

INDEX TO APPENDICES

APPENDIX A:

Opinion of the Court of Appeals for the

I NE bw eikscennds ba55 6eansseses A-1

APPENDIX B:

Opinion of the District Court for the Southern

EE Ot EL ove ccessnceckdeectentes B-1

APPENDIX C:

Denial of Petition for Rehearing .......... C-1

APPENDIX D:

Complaint at Law of Plaintiff ............ D-1

APPENDIX E:

RIES Ae OT E-1

A-1l

APPENDIX A

[UNPUBLISHED ORDER NoT TO BE CITED PER CIRCUIT RULE 35]

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 15, 1984*

August 22, 1984.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. RICHARD D. CuDAHY, Circuit Judge

Hon. JOEL M. FLaum, Circuit Judge

PATRICK RAMIREZ,

Plaintiff-Appellant,

No. 83-2702 vs.

VERNAL BouGu, Sergeant of the Howard County

Sheriff's Department, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 83-C-954

Hon. William Steckler, Judge.

* After prelimi examination of the briefs, the court notified

the opeeg that it tentatively concluded that oral argument

would not be helpful to the court in this case. The notice provided

that any party might file a “Statement as to Need of Oral Argu-

ment.” See Rule 34(a), Fed. R. App. P.; Circuit Rule 14(f). No such

statement having been filed, the appeal has been submitted on the

briefs and record.

a a,

A-Z

ORDER

This pro se ap challenges the dismissal of plaintiff's

civil action beh on 42 U.S.C. § 1983. The underlying ac-

tion, also pro se, alleged that the defendants deprived him

of rights secured by Article V of the Interstate Agree-

ment on Detainers (IAD), 18 U.S.C. Appendix.

In March 1981, the plaintiff was incarcerated in the

Southern ry pe Prison where he was serving a sen-

tence of 2 to 20 years for possession of cocaine with in-

tent to deliver. A detainer was lodged against him by

the Howard County, Indiana prosecutor’s office on March

19, 1981. The detainer listed and included Information Af.-

fidavits for Cause No. 470, two counts of dealing in mari-

juana—one based on the events of December 17, 1979 and

one on the events of December 21, 1979. Plaintiff waived

his right to a pretransfer hearing, pursuant to the provi-

sions of Article IV(d) of the IAD, and agreed to be re-

turned te Howard County, Indiana to stand trial on these

charges. The Howard County prosecutor filed a formal

“Request for Temporary ” on June 16, 1981; this

request, however, listed the offense as Cause No. 424,

Counts I, II and III, dealing in marijuana. Plaintiff was

shortly thereafter transferred to Howard County by Vernal

Bough and Thomas Lloyd of the Howard County Sheriff's

Office, two of the named defendants. When the plaintiff

appeared in Howard County Superior Court II to plead

guilty to the two counts listed in the detainer, he was

informed that he was to be prosecuted for three counts

of dealing in a schedule IV controlled substance. Accord-

ing to the plaintiff, the June 16 listed charges contained

in Cause No. 424 were for dealing in marijuana, a Class

D felony, while the trial charges (dealing in a schedule

IV controlled substance) were for a Class C felony.

Plaintiff informed the state court at that time that he

had waived his right to a pretransfer ing on the un-

derstanding that he was to be wee pay or only two

counts of dealing in marijuana, listed as Cause No. 470,

and that he would have contested his transfer if he had

xnown that he would be prosecuted for three Class C

A-3

felonies. Plaintiff states that he also informed defendants

Bough, Lloyd and Sheriff Earl Howard that there had

been a violation of the IAD. Later he conveyed the same

information to — Baker, the Indiana Detainer Ad-

ministrator. Howard and Baker are the other named de-

fendants in the § 1983 action. The complaint states that

plaintiff requested each of the four defendants to take ac-

tion to correct the situation. On May 17, 1982, the plain-

tiff was convicted by a jury of three Class C felony of-

fenses in Cause No. 424, and he was later sentenced to

five years.

In his civil complaint, plaintiff claims that the defendants

failed in their duty to enforce the provisions of the IAD

and — mone — from each of them. Defen-

Lloyd, and Howard answered, denying that

they had been requested by sagan to take corrective

action or that they had any duty under the IAD to en-

force the IAD provisicns. Defendant Baker, represented

by the state Attorney General, was granted an extension

to file an answer. ore the answer from defendant

Baker was received, the district court, on its own mo-

tion, dismissed the complaint for failure to state a claim

which relief could be ted. The district court held

that none of the named defendants could be held respon-

sible for the all violation of the LAD provisions, rea-

soning that the decision to prosecute plaintiff on c

other than those listed in the detainer was a decision

made by the county prosecutor and overseen by the coun-

ty ju . The court noted that neither the prosecutor nor

the judge were listed as named defendants and that both

d absolutely immune from civil suit for the'r

actions.

The first question we address is whether there was a

violation of the LAD. A prisoner may be transferred under

the authority of that interstate compact in one of two

ways: the prisoner himself wes, Bs poy a final disposi-

tion to be made on the charges li in the detainer (Ar-

ticle III) or the receiving state may request the prisoner’s

transfer (Article IV). Article V(d) states that the receiv-

ing state’s temporary custody under either of those pro-

A-4

visions “shall be only for the purpose of permitting prose-

cution on the charge or charges contained in one or more

untried indictments, informations, or complaints which

form the basis of the detainer or detainers or for any

other charge or charges arising out of the same transac-

tion.” The Supreme Court has indicated in dicta that

when a prisoner initiates a transfer under Article III, that

request “automatically extends to all pendi in

the receiving state.” Culyer v. Adams, 19 US. aia 444

(1981) (emphasis in original). Although the basis for this

statement is not recited, it appears to be sub-section (d)

of Article III. Article IV does not contain a parallel pro-

vision, and the Supreme Court in Culyer notes several

in which prisoners have different rights under

Article III and Article IV. Consequently, we find that the

plaintiff's yr states an — e violation of his

rights under icle V(d) of the IAD.

We are not persuaded that none of these defendants

would have a duty to take action to prevent or remedy

such a violation. This is “pe pene! true of defendant

Baker who had not even filed an answer at the time the

case was dismissed. Baker is the individual desi by

the State of Indiana to “promulgate rules and ions

to carry out more effectively the terms and provisions of

this agreement [andj provide, within and without the

state, information n to the effective operation of

the [IAD].” IAD, Article VII.

In summary, on this record several issues have yet to

be determined before it can be said that, as a matter of

law, the complaint fails to state a claim on which relief

can be granted. It may be that the case is one appropriate

for dismissal at some point,’ but that point has not yet

been reached.

REVERSED AND REMANDED.

1 For example, the record does not indicate whether the charges

contained in Cause No. 424, on which the plaintiff was tried, arose

from the same transaction as those contained in Cause No. 470,

listed in the detainer. If did, it is possible that there was

no violation of the term of IAD. See Interstate Agreement

on Detainers, Article V(d).

B-1

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Cause No. IP 83-954-C

PATRICK RAMIREZ,

Plaintiff,

vs.

VERNAL BouGu, Sergeant of the

Howard County Sheriffs Department;

Tuomas LLoyp, Jailer of the

Howard County Sheriffs Department;

EARL HOWARD, iff of Howard County; and

MARGE BARKER, Interstate ment on

Detainer Administrator for Indiana,

Defendants.

ENTRY

This matter comes before the Court on plaintiff's civil

rights complaint and defendants’ answer thereto.

After review of the pleadings, it appears that all of the

defendants named by plaintiff have no authority to pro-

secute plaintiff and, thus no claim valid under law can

be against them.

B-2

Plaintiff is an inmate at the Westville Correctional

Center at Westville, Indiana. He has sued the Sheriff of

Howard County, two of his staff, and the Indiana Admin-

istrator of the Interstate Agreement on Detainers. In his

complaint, Mr. Ramirez alleges that state officials violated

the Interstate Agreement on Detainers by prosecuting

plaintiff on state criminal charges not pecially identified

on the detainer document.

The Court can take judicial notice of the fact that the

Sheriff and members of his staff are responsible only for

the custody of plaintiff, not for any prosecution of actions

against him. As this is a civil rights complaint, and not

a petition for writ of habeas corpus, petitioner must show

personal involvement of the defendants in depriving plain-

tiff of his constitutional rights. See, Perry v. Elrod, 436

F. Supp. 229 (N.D. Ill. 1977); Cochran v. Rowe, 438 F.

Supp. 566 (N.D. Ill. 1977).

In Indiana, the institution of criminal te Pong is

vested with the prosecuting attorney. See, Indiana Code,

I.C. 35-34-1-1(b) (as amended 1982). Thus, the decision to

prosecute Mr. Ramirez on charges other than those con-

tained in the detainer was made by the particular county

prosecutor. Petitioner has not named the prosecutor as

a party defendant and if he had, the actions of the prose-

cutor and his deputies are protected by absolute immun-

ity. See, Imbler v. Pachtman, 424 U.S. 409 (1976). Another

ssible defendant, although not alleged as such by Mr.

yam , is the Judge of the Howard Superior Court since

the request to be tried on the charges contained in the

detainer had to be filed in that court. But again, the ac-

tions of the judge are protected by the absolute immunity

accorded the judiciary. See, Stump v. Sparkman, 435 U.S.

349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976).

Thus, it appears that any action plaintiff may have is

barred by absolute immunity; it is equally clear that none

of the named defendants can be held responsible for any

violation of the Interstate Agreement on Detainers.

B-3

Plaintiff's complaint is, therefore, ORDERED DISMISSED.

Dated this 19th day of August, 1983.

/s/ William E. Steckler

Judge

United States District Court

Southern District of Indiana

Copies:

Patrick Ramirez

#24767

Westville Correctional Center

P. O. Box 473

Westville, Indiana 46391

Richard E. Hagenmaier, D.A.G.

Office of the Attorney General

of the State of Indiana

219 State House

Indianapolis, Indiana 46204

Daniel J. Gamble, Esquire

Howard County Attorney

421 West Sycamore Street

Post Office Box 478

Kokomo, Indiana 46901

C-1

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

September 21, 1984.

Before

Hon. WALTER J. CUMMINGS, Chief ——

Hon. RICHARD D. CupanHy, Circuit Judge

Hon. JoEL M. FLauM, Circuit Judge

PATRICK RAMIREZ,

Plaintiff-Appellant,

No. 83-2702 vs.

VERNAL BouGH, THOMAS LLOYD, EARL HOWARD and

MARGE BARKER,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 83-C-954—Hon William E. Steckler, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed in the above-entitled

cause by defendants-appellees, no judge in active service

has requested a vote thereon, and all of the judges

on the original panel have voted to deny a rehearing,

Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

D-1

APPENDIX D

IN THE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

Cause No. IP83 954C

PATRICK RAMIREZ, Indiana Inmate Number 24767,

Plaintiff,

VS.

VERNAL BouGu, Sergeant of the

Howard County Sheriff's Department;

THOMAS LLOYD, Jailer of the

Howard County Sheriff's Department;

EARL Howarp, Sheriff of Howard County; and,

MARGE BARKER, Interstate Agreement on

Detainer Administrator for Indiana,

Defendants.

COMPLAINT FOR DECLARATORY RELIEF

AND MONETARY DAMAGES

I. PRELIMINARY STATEMENT:

1. Plaintiff Patrick Ramirez brings this action pursuant

to 42 U.S.C. §1983 contending that the Defendants, in-

dividually and jointly, under color of state law, have

denied him due process in violation of the Fourteenth

Amendment of the United States Constitution and of

rights secured for him by virtue of Article V(d) of the

D-2

Interstate Agreement on Detainers. The basis of Plain-

tiffs contention rests upon the fact that on July 21st,

1981, Plaintiff was ered from the State of Michigan,

to the State of Indiana, pursuant to Article IV of the

Interstate Agreement on Detainers, 18 U.S.C.App., and

was thereupon criminally prosecuted by the State of In-

diana for criminal charges in violation ot Article V(d) of

the Interstate Agreement on Detainers.

2. Plaintiff seeks declaratory judgment that the Defen-

dants’s actions or inactions, as hereinafter described, vio-

lated Article V(d) of the Interstate Agreement on De-

tainers and thereby denied Plaintiff Ramirez of due pro-

cess in violation of the Fourteenth Amendment of the

United States Constitution. Plaintiff further seeks ten-

thousand dollars ($10,000) from each Defendant as com-

pensation for the injuries sustained by him as a direct

result of the Defendants’s unlawful conduct.

II. JURISDICTION:

3. The Court has jurisdiction to hear this case pursuant

to 28 U.S.C. §1331, which provides that the District

Courts of the United States “shall have original jurisdic-

tion of all civil actions arising under the Constitution,

laws, or treaties of the United States.”

4. The Court has further jurisdiction to hear this case

pursuant to 28 U.S.C. §1343(aX3) since this is a civil ac-

tion authorized by 42 U.S.C. §1983, in which Plaintiff

Ramirez seeks “To redress the deprivation, under color

of state law, statute, ordinance, regulation, custom or

usage, or any right, privilege or immunity secured by the

Constitution of the United States or by any Act of Con-

gress providing for equal rights of citizens or of all per-

sons within the jurisdiction of the United States.

5. The Court has further jurisdiction to hear this case

pursuant to 28 U.S.C. §1343(d) since this is a civil action

authorized by 42 U.S.C. $1983, in which Plaintiff Ramirez

seeks “To recover damages or (and) to secure equitable

or other relief under any Act of Congress providing for

the protection of civil rights. . .”

D-3

6. The Court has jurisdiction to grant Plaintiff

Ramirez’s request for declaratory relief pursuant to 28

U.S.C. §§2201 and 2202, as well as Rule 57 of the Federal

Rules of Civil Procedure, since there is an actual con-

troversy existing between the parties as to the Plaintiff's

rights and the lawfulness of the Defendants’s actions or

inactions, requiring a decree of declaration from this Court

settling the controversy.

7. Plaintiff's action is authorized by 42 U.S.C. §1983,

which provides a remedy for him to seek redress for any

deprivation imposed upon him by any person working

under color of any state law, of any right, privilege, or

immunity secured for him by the Constitution or laws of

the United States.

8. This action also arises directly under the Fourteenth

Amendment of the United States Constitution and 18

U.S.C.App., to-wit: the Interstate Agreement on De-

tainers.

III. VENUE:

8. This Court has venue to hear this case pursuant to

28 U.S.C. §1391(b) since jurisdiction of the Court is not

founded solely on diversity of citizenship and all of the

named Defendants reside within the Court’s judicial dis-

trict.. Furthermore, this Court is the proper division to

hear this case pursuant to 28 U.S.C. §94(bX1), since all

of the named Defendants reside in either Howard or

Marion Counties of the State of Indiana.

IV. PARTIES:

Plaintiff

9. Plaintiff Patrick Ramirez is currently an inmate of

the Indiana Department of Correction. He is incarcerated

at the Westville Correctional Center, where he is serv-

ing. three concurrent five year terms of imprisonment

which were imposed upon after having been found guilty

of three counts of dealing in a schedule IV controlled

substance, Class C felonies, under Cause Number 424, in

D-4

the Howard Superior Court, NO. II. At the time this ac-

tion arose, Plaintiff was an inmate at the Southern Michi-

gan Prison, located in Jackson, Michigan. From July 21st,

1981, until June 8th, 1982, Plaintiff was in confinement

at the Howard County Indiana Jail, awaiting trial and

sentencing on the criminal charges complained about

herein.

Defendants

10. Defendant Vernal Bough is a duly appointed officer

of the Howard County Indiana Sheriff's Department. De-

fendant Bough holds the rank of Sergeant and his job

duties entail, among other things, the transporting of

prisoners from other states to a in when the Howard

County Prosecutor makes a request for temporary custody

of prisoners | aogge to the Interstate Agreement on De-

tainers. Under state law, Defendant Bough has a legal

duty to strictly enforce the terms of the Interstate Agree-

ment on Detainers.

11. Defendant Thomas Lloyd is a duly appointed officer

of the Howard County Indiana Sheriff's Department. De-

fendant Lloyd is assigned as a jailer and his job duties

entail, among other things, the transporting of prisoners

from other states to Indiana when the Howar County

Prosecutor makes a request for temporary custody of

prisoners pursuant to the Interstate Agreement on De-

tainers. Under state law, Defendant Lloyd has a legal

duty to strictly enforce the terms of the Interstate Agree-

ment on Detainers.

12. Defendant Earl Howard is the duly elected Sheriff

of Howard County Indiana. In that capacity, Defendant

Howard is responsible for the management and supervi-

sion of the Howard County Indiana Jail and Sheriff's

Department. He assigns tasks to his subordinates, in

cluding orders to transfer prisoners from other states to

Indiana when the Howard County Prosecutor makes a re-

quest for temporary custody of prisoners pursuant to the

Interstate Agreement on Detainers. Under state law, De-

fendant Howard has a legal duty to strictly enforce the

terms of the Interstate Agreement on Detainers.

D-5

13. Defendant Marge Barker is the duly appointed and

qualified Interstate Agreement on Detainers Administra-

tor for the State of Indiana. In this capacity, Defendant

Barker is responsible for, among other things, coordinating

transfers of prisoners between the State of Indiana and

the party states of the Interstate Agreement on De-

tainers. She is further responsible for promulgating rules

and regulations necessary to carry out more effectively

the terms and provisions of the Interstate Agreement on

Detainers and has a legal duty to disseminate informa-

tion necessary to ensure the effective operation of the

terms of the Interstate Agreement on Detainers. Under

state law, Defendant Barker has a legal duty to enforce

the terms of the Interstate Agreement on Detainers.

V. FACTUAL ALLEGATIONS:

14. On March 16th, 1981, Plaintiff Ramirez was incar-

cerated at the Southern Michigan Prison, where he was

serving a two to twenty (2-20) year sentence for posses-

sion of cocaine with intent to deliver, when the Howard

County Indiana Prosecutor’s Office lodged a detained

against him for two counts of dealing in marijuana, class

D felonies, under Howard Superior Court II Cause

Number 470. (See attached exhibit ‘A”’).

15. On March 19, 1981, and in good faith, Plaintiff

Ramirez waived his right to a pretransfer hearing to

challenge the validity of his return to Howard County In-

diana and thereby agreed to voluntarily return for the

sole p se of reaching a final disposition on the two

counts of dealing in marijuana under Howard County Su-

perior Court Cause Number 424. (See attached exhibit

“2

16. On June 16th, 1981, the Howard County Prosecutor

filed its formal “Request for Temporary Custody’, how-

ever, the request was for three counts of dealing in mari-

juana, under Howard County Superior Court Cause Num-

ber 424. (See attached exhibit ‘‘C”).

17. On July 21st, 1981, Defendants Vernal Bough and

Thomas Lloyd travelled to the Southern Michigan Prison

D-6

and obtained temporary custody of Plaintiff Ramirez.

Thereupon, Defendants Bough and Lloyd transfered Plain-

tiff Ramirez to the Howard County Indiana Jail.

18. On July 23rd, 1981, Plaintiff Ramirez made an ap-

pearance before the Howard County Superior Court II.

The purpose of this appearance was suppose to be for

the sole purpose of Plaintiff Ramirez entering a plea of

— to the two counts of dealing in marijuana, class D

elonies, under Cause Number 470. Nevertheless, Plain-

tiff Ramirez was informed that the State of Indiana in-

tended to further prosecute him for three counts of deal-

ing in a schedule IV controlled substance, class C felonies,

under Cause Number 424. Thereupon, Plaintiff Ramirez

told the Howard Superior Court that he was led to be-

lieve that when he waived his right to a pretransfer hear-

ing at the Southern Michigan Prison, he would only be

prosecuted by Howard County authorities for the charges

under Cause Number 470. Plaintiff further advised the

Howard Superior Court that he had not been notified that

upon his return to Howard County he would also be pros-

ecuted for the Class C felonies, that no detainer had been

lodged against him for these crimes and that had he been

aware that the Howard County Prosecutor was going to

prosecute him for the Class C felonies he would have con-

tested his transfer.

19. Upon gaining knowledge of the State’s intent to

prosecute him on the Class C felonies under Cause Num-

ber 424, Plaintiff Ramirez notified Defendants Bough,

Lloyd and Earl Howard that there had been a violation

of Article V(d) of the Interstate Agreement on Detainers

because the State was about to prosecute him for charges

that did not form the basis of the detainer lodged against

him and did not arise out of the same transaction as did

the charges involved in Cause Number 470. Plaintiff

Ramirez then requested that Defendants Bough Lloyd,

and Howard take appropriate action to rectify the vio-

lation.

20. During September of 1981, Plaintiff Ramirez, by

telephone, informed Defendant Marge Barker that

D-7

Howard County authorities had violated Article V(d) of

the Interstate Agreement on Detainers by prosecuting

him for criminal charges which did not form the basis of

the detainer lodged against him in Michigan and for

charges which did not arise out of the same transaction

as did the charges which formed the basis of the detainer

upon which his transfer was initiated by the Howard

County Prosecutor. Plaintiff Ramirez then requested De-

a Barker to take appropriate action to rectify the

violation.

21. Defendants Bough, Lloyd, Howard, and Barker failed

and refused to rectify the above violation and on May

17th, 1982, Plaintiff Ramirez was found guilty, by a jury,

of the three Class C felonies under Howard County

Superior Court Cause Number 424.

22. On June 8th, 1982, the Howard Superior Court sen-

tenced Plaintiff Ramirez to five years on each of the three

Class C felonies, to be served concurrently with one

another, but consecutively to the sentence imposed for the

class D felonies under Cause Number 470.

23. Article V(d) of the Interstate Agreement on De-

tainers provides in pertinent part:

“The temporary custody referred to in this agree-

ment shall be only for the purpose of permitting

prosecution on the charge or charges contained in one

or more untried indictments, information or com-

plaints which form the basis of the detainer or de-

tainers or for the prosecution of any other charge or

waded out of the same transaction. . .”” (emphasis

added).

24. That Article V(d) of the Interstate Agreement on

Detainers clearly places a limit on the party state of said

agreement that once temporary custody of a prisoner is

obtained, the prisoner may only be prosecuted for the

charges which form the basis of the detainer or for addi-

tional charges arising out of the same transaction as do

the charges from which the detainer resuits.

25. That the charges which formed the basis of the de-

tainer in this case were two counts of dealing in mari-

D-8

juana, Class D felonies, and were filed under Howard

Superior Court Cause Number 470. These charges oc-

curred on December 17 and 21, 1979. The ¢ in

Howard r Court Cause Number 424 involved three

counts of ealing in a schedule IV controlled substance

and occurred on January 29, March 12, podany Xe 18,

1979. There was never a detainer | 1 pe Nae

1970. There was mover & detainar lodged controlled

substance charges and the charges in Cause Number 424

did not arise out of the same transaction as the charges

in Cause Number 470 did. Furthermore, temporary cus-

tody of Ramirez was sought and obtained only by the

~ County Prosecutor for the dealing in marijuana

charges under Cause Number 470.

26. Pursuant to Article 9, §3, of I.C. 35-2.1-2-4, the De-

fendants herein were under a legal duty to strictly en-

force the provisions of the teterviate Agreement on De-

tainers and therefore should have taken precautionary ac-

tion to ensure that Plaintiff Ramirez was prosecuted only

within the limitations and terms of the provisions of the

Interstate Agreement on Detainers.

27. That Defendants, individually and jointly, were

negligent in their duty to enforce the provisions of the

Interstate Agreement on Detainers by failing and refus-

ing to rectify the above violation when it was brought

to each of their attention and because of said negligence

Plaintiff Ramirez has suffered rivation rights, privi-

leges, and immunities guaran to him by the Inter-

state Agreement on Detainers.

28. oe Se ee ey tricked and

deceived into wees mgt soaps toa ar hearing

to challenge the valid ity of his return to Howard County.

29. At all times mentioned in this complaint the Defen-

dants acted under color of state law.

VI. First Cause Or ACTION:

30. Plaintiff Ramirez has been denied his right, which

is guaranteed to him by Article V(d) of the Interstate

D-9

Agreement on Detainers, to only be prosecuted for crim-

a tbe 7 which form the cals the detainer or for

out of the same transaction as the charges

upon pan which the detainer is based, in violation of 18

App

VII. SeEconp Cause OF ACTION:

31. Plaintiff Ramirez has been denied due process of

law in violation of the Fourteenth Amendment of the

United States Constitution.

VIII. InJury:

32. einjury under 18 USCApp. Article Vd and im-

mediate injury under 18 U.S.C bn Heth

Fourteenth Amendmert of the U

33. Plaintiff Ramirez has no decgeibon samen

and there is an actual controve een the parties

requiring a declaration of Plaintiff's rights and the legal-

ity or illegality of the Defendant’s actions or inactions as

hereinbefore described.

IX. Prayer For RELIEF:

WHEREFORE, Plaintiff prays and demands the follow-

ing relief:

1. That the Court assume jurisdiction over this mat-

ter and set the complaint down for an early trial date;

2. That the Court issue a decree of declaration that

the defendants’ actions or inactions have violated Plain-

tiffs rights under 18 U.S.C.App., and the Fourteenth

Amendment of the United States Constitution; and,

3. That the Court award Plaintiff the sum of $10,000

from each Defendant for the injuries sustained by him in

this cause of action.

D-10

Respectfully submitted,

/s/ PATRICK RAMIREZ

Plaintiff pro se

DOC#24767

Westville Correctional Center

P.O. Box 473

Westville, Indiana 46391

STATE OF INDIANA

COUNTY OF LAPORTE-—SS:

OATH OF AFFIRMATION

I, Patrick Ramirez, do hereby affirm under the pains

and penalties for perjury that all of the foregoing state-

— and correct to the best of my knowledge

an 4

/s/ PATRICK RAMIREZ

— and sworn to before me this 24th day of June,

1983.

/s/) NEOMIA BEAM

atl taPoe 6

i in orte County,

Indiana ‘

My COMMISSION EXPIRES ON:

June 27th, 1986

JURY DEMAND

The Plaintiff, Patrick Ramirez, hereby demands that this

cause be tried by a duly selected, sworn, and impanelled

Jury.

/s/ PATRICK RAMIREZ

D-11

PLAINTIFF’S EXHIBIT “A”

(Letterhead Of)

OFFICE OF THE PROSECUTING ATTORNEY

62nd Judicial Circuit

Kokomo, Indiana 46901

* & &

March 16, 1981

Gary Mintzes, Warden

State Prison of Southern Michigan

4000 a Street

Jackson, Michigan 49201

Re: State of Indiana

Vs: Patrick Ramirez (Jackson DOC#A16D3193)

Howard Superior Court II, Cause #470

Dear Warden Mintzes:

Enclosed please find certified copies of our Information

Affidavits and Arrest Warrant on the above named indi-

vidual. Please file these documents as a detainer on our

behalf against Mr. Ramirez.

It is our understanding, through defendant’s attorney, that

Mr. Ramirez will be willing to sign a waiver (Form II)

in this matter.

Please note the Court’s address as follows: Howard Su-

rior Court, Division II, Third Floor, Courthouse,

okomo, Indiana 46901.

If you require further information, please feel free to con-

tact my office.

Yours truly,

/s/ Fred G. Osborn

Prosecuting Attorney

Enc.

ee: Mr. Jeffrey A. Lockwood

Defendant’s Attorney

FGO/m

D-12

CLERK’S CERTIFICATE

State of Indiana STATE OF INDIANA

Howard County—ss: vs.

PATRICK RAMIREZ Cause 470

I, DONALD C. HOWARD, SR., Clerk of the Circuit

Court, within and for the County of Howard and the State

of Indiana, the same being a Court of Record having a

seal, do hereby certify that the ATTACHED is a full, true

and complete copy of COUNT I INFORMATION FOR

DEALING IN MARIJUANA FILED FEBRUARY 19,

1980, COUNT II INFORMATION FOR DEALING IN

MARIJUANA FILED FEBRUARY 19, 1980 AND THE

BENCH WARRANT ISSUED FEBRUARY 22, 1980 IN

THE ABOVE CAPTIONED CAUSE as the same ap-

pears upon the records of said Court in my custody as

such Clerk and on file in my office.

IN TESTIMONY WHEREOF, I have here-

unto subscribed my name and affixed the

Seal of said Court, at the City of Kokomo,

Indiana, this 138 day of March, A.D. 1981.

Signed Donald C. Howard, Sr.

Clerk of Howard Circuit

Court of Indiana

D-13

IN THE HOWARD SUPERIOR COURT

DIVISION II

(Filed February 19, 1980)

State of Indiana

County of Howard—ss:

STATE OF INDIANA

vs. No. 470

PATRICK RAMIREZ COUNT I

INFORMATION FOR

DEALING IN MARIJUANA

Before me, Notary Public, came the undersigned affiant,

who, duly sworn according to law upon his oath deposes

and says:

That on or about the 17th day of December, 1979, at

the county of Howard, and State of Indiana, Patrick Ra-

mirez late of said county, did then and there knowingly

or intentionally deliver marijuana in an amount in excess

of thirty (30) , then and there being affiant is in-

formed and believes, contrary to the form of the statutes,

to-wit: I.C. 35-48-4-10 in such cases made and provided,

and against the peace and dignity of the State of Indiana.

/s/ Sgt. Jack Adams

Affiant

{Notarization omitted in printing.]

D-14

IN THE HOWARD SUPERIOR COURT

DIVISION II_ |

(Filed February 19, 1980)

State of Indiana

County of Howard—ss:

STATE OF INDIANA

vs. No. 470

PATRICK RAMIREZ COUNT II

INFORMATION FOR

DEALING IN MARIJUANA

Before me, Notary Public, came the undersigned affiant,

who, duly sworn according to law upon his oath deposes

and says:

That on or about the 21st day of December, 1979, at

the county of Howard, and State of Indiana, Patrick Ra-

mirez late of said county, did then and there unlawfully

knowingly or intentionally deliver marijuana in an amount

in excess of thirty (30) grams, then and there being af-

fiant is informed and believes, contrary to the form of

the statutes, to-wit: I1.C. 35-48-4-10 in such cases made and

ay be and against the peace and dignity of the State

of Indiana.

/s/ Sgt. Jack Adams

Affiant

{Notarization omitted in printing.]

D-15

March 19, 1981

Deputy Cason:

re: 163193 Ramirez, Patrick

The Howard County, Indiana, prosecutor has lodged a de-

tainer against Mr. Ramirez, charging him with two counts

of delivery of marijuana and one bench warrant.

/s/ Sandy Phelps

sp

ec: Counselor

RO Folder

Resident

Lansing RO

D-16

Bond $50,000

BENCH WARRANT

Superior Court II

(Filed March 10, 1980)

No. 470

STATE OF INDIANA

vs.

PATRICK RAMIREZ

Curtis Welke

Deputy Prosecuting Attorney

State of Indiana, Howard County. ss:

The State of Indiana to the Sheriff of Howard County,

Greeting:

You are hereby commanded to arrest Patrick Ramirez

if he may be found in your balliwick, so that you have

his body before the Judge of Superior Court II of Howard

County, instanter, and then and there to answer the State

of Indiana on a charge of Count I Dealing in Marijuana

and Count II Dealing in Marijuana and raise the order

of the Court thereon, and return this writ, on a charge

of Count I Dealing in Marijuana and Count II Dealing

in Marijuana and abide the order of the Court thereon,

and return this writ.

WITNESS, The Clerk and Seal of said Court this 22

day of February, 1980.

/s) Donald C. Howard, Sr.

Clerk.

SHERIFF’S RETURN

—————

D-17

State of Indiana

County of Howard—ss:

I, Donald C. Howard, Sr., Clerk of the Superior Court,

Division Two, of said County of Howard in the State of

Indiana, do hereby certify that the within and preceding

pages contain a full, complete, true and exact copy of an

Information Affidavit and Arrest Warrant, on file in a

cause record in Cause No. 470, State of Indiana, Plain-

tiff, vs. Patrick Ramirez, Defendant.

Given under my hand and seal of office, at Kokomo, in

said County of Howard in the State of Indiana, this 16

day of March, 1981.

DoNALD C. Howarp, Sr., CLERK OF

HOWARD SUPERIOR CouRT, DIVISION II

/s/ Donaid C. Howard, Sr.

State of Indiana

County of Howard—ss:

I, Carl E. Van Dorn, Judge of the Superior Court, Divi-

sion Two, of Howard County, State of Indiana, presiding

in said County of Howard, do hereby certify that Donald

C. Howard, Sr., whose name appears to be signed to =

above certificate, is and was, at the time of signin

the same, the Clerk of the Howard Superior Court, Bini

sion II therein mentioned, and which was the proper per-

> to make said certificate and that the same is in due

orm.

D-18

Given under my hand officially this 16 day of March,

1981.

/s/ Carl E. Van Dorn

JUDGE

HOWARD SUPERIOR CouRT, DIVISION IJ

State of Indiana

County of Howard—ss:

I, Donald C. Howard, Sr., Clerk of the Superior Court,

Division Two, Howard County, Indiana, do hereby cer-

tify that Carl E. Van Dorn, Judge, Superior Court, Divi-

sion II for Howard County, Indiana, is and was, at the

time of signing the same, the duly elected, qualified and

acting Judge of said Court herein mentioned and as such

was the proper person to make said certificate, and that

the same is in due form.

Given under my hand and seal of office, at Kokomo, in

said County of Howard, State of Indiana, this 16 day of

March, 1981.

DoNALD C. Howarp, Sr., CLERK OF’

HOWARD SUPERIOR CouRT, DIVISION II

/s/ Donald C. Howard, Sr.

D-19

PLAINTIFF’S EXHIBIT “B”

MICHIGAN DEPARTMENT OF CORRECTIONS

NOTICE OF UNTRIED INDICTMENT,

INFORMATION OR COMPLAINT

AND OF RIGHT TO REQUEST DISPOSITION

AGREEMENT ON DETAINERS: Form 1

*x* * *

Inmate’s Name Inmate’s # Institution

Patrick Ramirez A163193 SPSM-JL

Pursuant to the Agreement on Detainers, you are

hereby informed that the following are the untried indict-

ments, informations, or complaints against you concern-

ing which the undersigned has nbuletes, and the sources

and contexts of each.

Howard County, Indiana—two counts of delivery of

marijuana; bench warrant

You are hereby further advised that by the provisions

of said Agreement you have the right to request the ap-

propriate prosecuting officer of the jurisdiction in which

any such indictment, information or complaint is pending

and the appropriate court that a final disposition be made

thereof. You shall then be brought to trial within 180

days, unless extended pursuant to provisions of the Agree-

ment, after you have caused to be delivered to said prose-

cuting officer and said court written notice of the place

of your imprisonment and your said request, together with

a certificate of the pred authority as more fully set

forth in said Agreement. However, the court having juris-

diction of the matter may grant any necessary or reason-

able continuance.

Your — for final disposition will operate as a re-

quest for final disposition of all untried indictments, in-

D-20

formations or complaints on the basis of which detainers

have been lodged against you from the state to whose

prosecuting official your request for final disposition is

specifically directed. Your request will also be deemed to

be a waiver of extradition with respect to any charge or

proceeding contemplated thereby, or included therein and

a waiver of extradition to the state of trial to serve any

sentence there imposed upon you, after completion of

your term of imprisonment in this state. Your request will

also constitute a consent by you to the production of your

body in any court where your presence may be required

in order to effectuate the purposes of the Agreement on

Detainers and a further consent voluntarily to be returned

to the institution in which you are now confined.

Should you desire such a request for final disposition

of any untried indictment, information or complaint, you

are to notify Supervisor of Records of the institution in

which you are confined.

You are also advised that under provisions of said

Agreement the prosecuting officer of a jurisdiction in

which any such indictment, information or complaint is

pending may institute proceedings to obtain a final disposi-

tion thereof, in such event, you may oppose the request

that you be delivered to such prosecuting officer or court.

You may request the Governor of this state to disapprove

any such request for your temporary custody but you can-

not —_ delivery on the grounds that the Governor has

not atively consented to or ordered such delivery.

Dated: /s/ Barry Mintzes

March 19, 1981 Warden

Date Received

3-19-81

Inmate’s Name

/s/ Patrick Ramirez

D-21

You are further advised that by a decision in the United

States Supreme Court in Cuyler v. Adams, No. 78-1841,

decided January 21, 1981, you have the right to judicial

pre-transfer hearing, before being transferred to another

jurisdictior pursuant to Article IV of the Detainer Agree-

ment.

/s/ SANDRA PHELPS

/s/ PATRICK RAMIREZ

(Received)

D-22

PLAINTIFF’S EXHIBIT “C”

-_* * * ©

REQUEST FOR TEMPORARY CUSTODY

Mintzes, Warden, State Prison of Southern Michigan,

Cooper Street, Jackson, Michigan 49201

Please be advised that Patrick Ramirez #A16D3193 who

is presently an inmate of your institution, is under infor-

mation in the 62nd Judicial Circuit of which I am the

ing Attorney. Said inmate is therein charged with

the offenses enumerated below:

Offense

Counts I, II and III Dealing in —. under

Cause #424, Howard Superior Court II.

I propose to bring this person to trial on this informa-

tion within the time specified in Article IV(c) of the

Agreement.

Se

ly had, I hereby request temporary custody of such person

pursuant to Article IV(a) of the Agreement on Detainers.

| ae ee iately after trial is completed

in this jurisdiction, I will return the prisoner directly to

yon oF See one ee en eee

sm ¥ also to comp Form IX,

the otice of Disposition of a Detainer, immediately after

trial.

/s/ Fred G. ay

Prosecuting ttorney

62nd Judicial Circuit

State of Indiana

: ia

bali

st ar :

/s/ Carl E. Van Dorn

Howard Superior Court II

J

t Admin. (IN)

Admin. (MI)

. Van Dorn

gg emery

Earl H.

Honorable

e Car

ce: Patrick Ramirez

E-1

APPENDIX E

STATUTES INVOLVED

42 U.S.C. § 1983 (Supp. IV 1980)

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the ation

of any rights, privileges, or immunities by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

or for redress. For the purposes of this section, any

Act of Co applicable exclusively to the District of

Columbia shall be considered to be a statute of the Dis-

trict of Columbia.

L.C. 35-33-10-4

Agreement on detainers; defendants confined in other juris-

dictions of United States

Sec. 4. oe attendance of defendants confined as

= in institutions of other jurisdictions of the

nited States—Agreement on detainers.

*~_ * *

Article 5

*-_ * *

(d) The tempo custody referred to in this agree-

ment shall be only for the purpose of permitting prose-

cution on the charge or charges contained in one or more

untried indictments, informations or complaints which

form the basis of the detainer or detainers or for prose-

cution on any other charge or charges arising out of the

E-2

same transaction. Except for his attendance at court and

hin presence may be required the priser shall be held

the prisoner shall be held

yoy I ett weed for per-

gons awaiting prosecution.

“* *

Article 9

“* *

3. All courts, departments, agencies, officers and em-

loyees of this state and its political subdivision are

hereby directed to enforce the agreement on detainers and

oo a coe de pecposee.

in enforcing the agreement and effectuating its purposes

** *