Scribd Logo
Upload

Welcome to Scribd!

  • 20 views

    Smith v. McCotter, 10th Cir. (1999)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Melvin Smith's § 1983 claim alleging violation of his right to a speedy trial. The Court found that one of the three prior cases cited as the basis for dismissing Smith's complaint under § 1915(g) was not actually dismissed for failure to state a claim. However, the Court determined that Smith's current complaint could be dismissed under § 1915(e)(2)(B) for failure to state a claim. Specifically, the Court found that even accepting Smith's factual allegations as true, the alleged 194 day delay before trial did not rise to the level of a presumptively prejudicial delay violating his right to a speedy

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    Smith v. McCotter, 10th Cir. (1999)

    Uploaded by

    Scribd Government Docs
    20 views4 pages
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Melvin Smith's § 1983 claim alleging violation of his right to a speedy trial. The Court found that one of the three prior cases cited as the basis for dismissing Smith's complaint under § 1915(g) was not actually dismissed for failure to state a claim. However, the Court determined that Smith's current complaint could be dismissed under § 1915(e)(2)(B) for failure to state a claim. Specifically, the Court found that even accepting Smith's factual allegations as true, the alleged 194 day delay before trial did not rise to the level of a presumptively prejudicial delay violating his right to a speedy

    Original Description:

    Filed: 1999-07-12 Precedential Status: Non-Precedential Docket: 99-4025

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Melvin Smith's § 1983 claim alleging violation of his right to a speedy trial. The Court found that one of the three prior cases cited as the basis for dismissing Smith's complaint under § 1915(g) was not actually dismissed for failure to state a claim. However, the Court determined that Smith's current complaint could be dismissed under § 1915(e)(2)(B) for failure to state a claim. Specifically, the Court found that even accepting Smith's factual allegations as true, the alleged 194 day delay before trial did not rise to the level of a presumptively prejudicial delay violating his right to a speedy

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    20 views4 pages

    Smith v. McCotter, 10th Cir. (1999)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Melvin Smith's § 1983 claim alleging violation of his right to a speedy trial. The Court found that one of the three prior cases cited as the basis for dismissing Smith's complaint under § 1915(g) was not actually dismissed for failure to state a claim. However, the Court determined that Smith's current complaint could be dismissed under § 1915(e)(2)(B) for failure to state a claim. Specifically, the Court found that even accepting Smith's factual allegations as true, the alleged 194 day delay before trial did not rise to the level of a presumptively prejudicial delay violating his right to a speedy

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    JUL 12 1999

    PATRICK FISHER
    Clerk

    MELVIN E. SMITH,
    Plaintiff-Appellant,
    v.
    O. LANE MCCOTTER; J. TERRY
    BARTLETT, Head of Division of
    Institutional Operations, in his official
    and individual capacities; HANK
    GALETKA, Warden of the Utah
    Department of Corrections, in his
    official and individual capacities;
    JUNE HINCKLEY, Records Clerk for
    the Utah Department of Corrections, in
    her official and individual capacities,

    No. 99-4025
    (D.C. 98-CV-865-S)
    (District of Utah)

    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Mr. Smith brought this action pursuant to 28 U.S.C. 1983, alleging the
    defendants violated his right to speedy trial. The district court denied in forma
    pauperis status and dismissed the complaint under 28 U.S.C. 1915 (g), finding
    that Mr. Smith had on 3 . . . prior occasions, while incarcerated . . . , brought an
    action or appeal in a court of the United States that was dismissed on the grounds
    that it is frivolous, malicious, or fails to state a claim upon which relief may be
    granted . . . . 28 U.S.C. 1915 (g). Among the three cases listed by the district
    court was Smith v. Lanna, 93-CV-44 (D. Utah 1993).
    In Smith v. Lanna the district court dismissed the complaint against most
    defendants because no arguable claim for relief is stated. Rec. doc. 4, at 5
    (Magistrates Report and Recommendation dated May 10, 1993). However, [a]s
    to the other defendants, an arguable claim is stated but additional information is
    needed for service. Id. Thus, the court dismissed the complaint giving Mr.
    Smith leave to file an amended complaint within ten days if he could provide the
    additional information required for service. See id.
    In our opinion, this dismissal is not for failure to state a claim upon which
    relief may be granted. Therefore, because we hold that Mr. Smith has only on
    2

    two prior occasions had actions dismissed for section 1915(g) purposes, Mr.
    Smiths complaint cannot be dismissed on that ground.
    However, Mr. Smiths complaint could properly be dismissed under 28
    U.S.C. 1915(e)(2)(B) for failure to state a claim on which relief may be granted,
    and we may affirm the district courts dismissal for any correct reason supported
    by the record. See Medina v. City and County of Denver, 960 F.2d 1493, 1495
    n.1 (10th Cir. 1992) Mr. Smith alleged that the defendants willful failure to file
    his demand for a disposition of a pending charge, in accord with Utah Code Ann.
    77-29-1, violated his federal right to a speedy trial.
    "[A] violation of state law alone does not give rise to a federal cause of
    action under 1983." Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Thus,
    Mr. Smiths allegation that the defendants violated Utah law, would not provide
    ground for a section 1983 claim against them.
    Liberally construing Mr. Smiths pro se claim, see Haines v. Kerner, 404
    U.S. 519, 520-21 (1972), we might consider whether the alleged violation of Utah
    law is evidence of the second and third factors provided by the Supreme Court
    with which we evaluate an alleged violation of the right to a speedy trial: reason
    for the delay, and defendants assertion of his right. See Barker v. Wingo, 407
    U.S. 514, 530 (1972) (listing length of delay, the reason for the delay, the
    defendant's assertion of his right, and prejudice to the defendant as relevant
    3

    factors). However, Mr. Smiths allegation that his right to speedy trial was
    violated cannot withstand even the facts he alleges in his complaint. He notes
    that he was not tried for 194 days after presenting his demand for disposition to
    the appropriate authorities. See Rec. (Complaint dated October 9, 1998)) at 4.
    Utah law provides that trial must commence no later than 120 days after delivery
    of the demand, absent a motion for continuance by either party. See Utah Code
    Ann. 77-29-1. Therefore, any malfeasance by the defendants with regard to the
    120 day disposition demand could be responsible for at most a 64 day delay
    before Mr. Smiths trial. Such delay cannot rise to the level of presumptively
    prejudicial, enunciated in Barker, and we therefore do not reach the remaining
    three factors. See Barker, 407 U.S. at 530.
    Mr. Smith has failed to state a claim on which relief can be granted.
    We accordingly AFFIRM the district courts dismissal.

    Entered for the Court,


    Judge Robert Henry
    Circuit Judge

    You might also like