Wymore v. Green, 10th Cir. (2007)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
August 17, 2007

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 courts 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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
courts dismissal for failure to state a claim, Curley v. Perry, 246 F.3d 1278, 1281
(10th Cir. 2001), and affirm the district courts 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 ymores 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
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counter-petition against her. Because the allegations against him, if true, would
constitute a violation of M r. W ymores 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 wifes
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 ymores 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
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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 ymores
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 ymores allegations. See Martinez v. Aaron, 570 F.2d 317,
31920 (10th Cir. 1978) (holding that courts may order prison officials to
investigate allegations in a prisoners complaint and to file a report summarizing
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the findings). After receiving and reviewing the report, the district court
dismissed M r. W ymores 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 ymores] claim of
illegal confinement. R. Doc. 13, at 6. The district court also dismissed M r.
W ymores claim against M s. Collins, holding that she was entitled to absolute
quasi-judicial immunity for allegedly failing to file M r. W ymores 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 Appellants Br. 38, 1314.
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, 128081 (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 ymores out-of-state parole application and accompanying
extradition waiver is valid, we see no reason to disturb the district courts 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 ymores remaining claim on appeal is equally unavailing. He asks us
to reverse the district courts grant of absolute quasi-judicial immunity to M s.
Collins, the state court clerk, for allegedly refusing to file M r. W ymores court
documents. The district court based its ruling on our unpublished opinion in
Colem an v. Farnsworth, 90 F. Appx 313 (10th Cir. 2004), where we held that
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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 ymores
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
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Wymore v. Green, 10th Cir. (2007)

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F I L E D

United States Court of Appeals

August 17, 2007

LEROY GREEN, JR., County Sheriff,

(D.C. No. 06-CV-3057-SAC)

OR D ER AND JUDGM ENT *

Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.

an officer stationed at the Elayn H unt Correctional Facility in St. Gabriel,

general category as an argument presented [before the district court] or . . . a

a [court] clerk must have unfettered discretion to review a complaint

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