878 F2d 386 Krebs v. Drago

878 F.2d 386

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

John William KREBS, Plaintiff-Appellant,
Roy DRAGO; Richard J. McNerney; Three Unknown Morrow
County Sheriff Deputies; and One Unknown Heppner
City Police Officer, Defendants-Appellees.

No. 86-4420.

United States Court of Appeals, Ninth Circuit.

Submitted* May 16, 1989.
Decided June 21, 1989.

Before KILKENNY, WIGGINS and NOONAN, Circuit Judges.

view counter



John William Krebs, an Oregon state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. Sec. 1983 civil rights action against Richard McNerney, Morrow County district attorney, and grant of summary judgment in favor of the remaining defendants, four deputy sheriffs of Morrow County and a Heppner City Police Officer. On August 8, 1985, a Morrow County Deputy Sheriff and Heppner City Police Officer transported Krebs from the Oregon State Penitentiary to a jail in Kennewick, Washington. He was housed there overnight prior to his appearance at a criminal sentencing in Morrow County, Oregon, and received no pre-transfer or other hearing prior to his entry into Washington and re-entry into Oregon. Krebs contends that this overnight transfer to another state's jail violated his right to due process. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and we affirm.

A. District Attorney McNerney


In an action brought under 42 U.S.C. Sec. 1983, Krebs is required to prove that a person acting under color of state law, custom or practice has deprived him of a federally protected right. See, e.g., Escamilla v. City of Santa Ana, 796 F.2d 266, 268 (9th Cir.1986). Here, Krebs has failed to allege that McNerney acted in any way. Moreover, as a prosecutor, McNerney would be absolutely immune from damages in a section 1983 action. Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.1986).


B. Defendants Drago, Morrow County Sheriff Deputies and Heppner City Police Officer


Broadly construing Kreb's complaint, he appears to be contending (1) that the remaining defendants should not have removed him without filing a detainer and (2) he had a liberty interest in remaining incarcerated in Oregon. These contentions are without merit.


First, Kreb's transfer did not require formal detainer proceedings. The Interstate Agreement on Detainers, codified as Or.Rev.Stat. Sec. 135.775, provides certain procedural protections and applies when a pretrial detainee is sent from the state in which he is incarcerated to a different state where criminal charges are pending against him. See, e.g., Cuyler v. Adams, 449 U.S. 433, 449 (1981). Here, however, Krebs was simply housed at a Washington jail overnight at the request of the Oregon defendants. This sort of request does not constitute a "term of imprisonment" within the meaning of the Agreement. Therefore, the transportation of Krebs from Washington back to Oregon did not require formal detainer proceedings and the procedural protections of Cuyler are inapplicable.1 See Cuyler, 449 U.S. at 443.


Second, Krebs's transfer from Oregon to Washington was not a violation of his due process rights. The movement of a duly convicted prison inmate from a prison in one state to a prison in another does not violate the prisoner's due process rights unless the prisoner can show "particularized standards or criteria" which limit the discretion of the prison officials in making transfers. Olim v. Wakinekona, 461 U.S. 238, 245-49 (1983).

view counter

Here, Oregon's statutes place no apparent substantive limitations on a prison administrator's discretion to transfer inmates to Washington. Both Oregon and Washington are participants in the Western Interstate Corrections Compact. Or.Rev.Stat. Sec. 421.282, et. seq.; Wash.Rev.Code Sec. 72-70-010, et. seq. (corrections compact between states, implemented by statutes, authorizing incarceration of a prisoner of one State in another State's prison). Therefore, because Krebs does not possess a liberty interest in incarceration in a particular prison, or a particular state, the district court did not err in granting summary judgment in favor of the remaining defendants. See Olim, 461 U.S. at 245-48.




The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Nor can it be said that the constitutional principles relating to extradition are applicable here. Krebs was not a fugitive "fleeing from justice." Rather, he was an Oregon prisoner taken to Washington overnight by Oregon law enforcement officers