*

 After examining Appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore

ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

January 23, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STEVEN DEWAYNE JENKINS, 

Plaintiff–Appellant, 

 v. No. 07-6113

ERNIE CURRIER, Mayor of Enid,

OK; BILL WINCHESTER, Sheriff,

Garfield County; JON MARSHALL,

Deputy; LOGAN NILES, Deputy;

JENNIFER BUTTRUM, Detention

Officer; CURTIS LENTZ, Detention

Officer, 

Defendants–Appellees.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 07–CV–223–M)

Submitted on the briefs:*

Steven Dewayne Jenkins, pro se.

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

McKAY, Circuit Judge.
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In this 42 U.S.C. § 1983 action, Appellant, a state prisoner proceeding pro

se, alleges that state officials violated his constitutional rights and state law when

they took him into custody without a warrant or a probable cause hearing and

transferred him to a correctional facility in order for him to serve his previously

imposed sentences.

Appellant pled guilty in December 2003 to two Oklahoma charges of

distributing controlled dangerous substances within 2000 feet of a school. He

was sentenced to concurrent twelve-year terms of imprisonment on each count, to

be served concurrently with his preexisting federal sentence. However, after

finishing his federal sentence in May 2004, Appellant was erroneously released to

the street rather than being returned to Oklahoma custody to serve his state

sentences. 

In February 2005, Appellant was arrested without a warrant by Oklahoma

state officials who evidently were aware that he had not completed his state

sentences. They did not take him before a judge or magistrate for a hearing, but

simply transferred him to the Lexington Assessment and Reception Center for

processing. He was subsequently transferred to the Lawton Correctional Facility. 

The Oklahoma state district court recently granted Appellant street-time credit for

the 280 days between his release on May 18, 2004, and his detention on February

22, 2005, based on its conclusion that he was released through no fault of his
1

 Appellant also argues that the absence of any detainers on his notice of

release from federal custody shows that the state must have deemed his state

sentences satisfied by the time served on the concurrent federal sentence. To the

extent that this argument is a challenge to the lawfulness of Appellant’s current

confinement, it is not cognizable under § 1983. See Heck v. Humphrey, 512 U.S.

477, 483-87 (1994). To the extent that Appellant raises this argument in support

of his Fourteenth Amendment claim, we disagree with his contentions. While the

absence of any holds on his federal prison record explains why federal officials

failed to release him into Oklahoma custody, it in no way proves that Oklahoma

considered his twelve-year sentences to be satisfied by the five months he served

in federal custody between December 2003 and May 2004. Moreover, his

argument receives no support from the state court records.

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own.

The district court dismissed Appellant’s complaint for failure to state a

claim, agreeing with the magistrate judge’s conclusion that Appellant’s Fourth

and Fourteenth Amendment rights were not violated by the state officials’ actions. 

The court then declined to exercise supplemental jurisdiction over Appellant’s

state law claim. On appeal, Appellant maintains that his constitutional rights

were violated when he was taken into custody without a warrant and was not

brought before a magistrate judge for a probable cause hearing before he was sent

to the correctional facility.1

We review the district court’s dismissal for failure to state a claim de novo. 

Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1153 (10th Cir. 2004). “Dismissal of

a pro se complaint for failure to state a claim is proper only where it is obvious

that the plaintiff cannot prevail on the facts he has alleged and it would be futile

to give him an opportunity to amend.” Perkins v. Kan. Dep’t of Corrs., 165 F.3d
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803, 806 (10th Cir. 1999). Although we construe a pro se plaintiff’s complaint

broadly, the plaintiff still has “the burden of alleging sufficient facts on which a

recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). “Plaintiffs alleging a violation of § 1983 must demonstrate 

they have been deprived of a right secured by the Constitution and the laws of the

United States, and that the defendants deprived them of this right acting under

color of law.” Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th

Cir. 2000) (internal quotation marks omitted).

The Fourth Amendment provides: “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 

Thus, “[t]he touchstone of the Fourth Amendment is reasonableness.” United

States v. Knights, 534 U.S. 112, 118 (2001). Although the existence or absence of

a warrant will usually be relevant to the reasonableness inquiry, the Fourth

Amendment does not require a warrant for every search or seizure. See Nat’l

Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989) (“While we

have often emphasized, and reiterate today, that a search must be supported, as a

general matter, by a warrant issued upon probable cause, our decision in [Skinner

v.] Railway Labor Executives [Assn., 489 U.S 602 (1989),] reaffirms the
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longstanding principle that neither a warrant nor probable cause, nor, indeed, any

measure of individualized suspicion, is an indispensable component of

reasonableness in every circumstance.”); see also United States v. Watson, 423

U.S. 411, 416-17 (1976) (“[T]here is nothing in the Court’s prior cases indicating

that under the Fourth Amendment a warrant is required to make a valid arrest for

a felony. Indeed, the relevant prior decisions are uniformly to the contrary.”);

Illinois v. McArthur, 531 U.S. 326, 330-31 (2000) (collecting cases). With

respect to seizures in particular, “[i]n conformity with the rule at common law, a

warrantless arrest by a law officer is reasonable under the Fourth Amendment

where there is probable cause to believe that a criminal offense has been or is

being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

Moreover, persons subject to criminal sanctions, such as incarcerated

prisoners and parolees, have more limited Fourth Amendment rights. For

instance, the Supreme Court has held that “the Fourth Amendment proscription

against unreasonable searches does not apply within the confines of the prison

cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). While “parolees are

protected against unreasonable searches and seizures[,] . . . their rights . . . are not

coextensive with those of ordinary citizens.” Sherman v. U.S. Parole Comm’n,

502 F.3d 869, 873 (9th Cir. 2007). Most courts that have considered the Fourth

Amendment implications of seizing a parole violator have held that a parolee

remains in legal custody during the period of his parole and therefore that the
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retaking of a parole violator does not constitute an arrest for Fourth Amendment

purposes. See United States v. Polito, 583 F.2d 48, 54-56 (2d Cir. 1978)

(collecting cases); see also Baumhoff v. United States, 200 F.2d 769, 770 (10th

Cir. 1952) (“It is true that during the time a prisoner is at large on parole he

remains in constructive custody.”). Although using the term “arrest” to describe

the retaking of a parolee, the Ninth Circuit has similarly indicated that the full

protections of the Fourth Amendment do not apply in such a situation: 

“[P]robable cause is not required to arrest a parolee for a violation of parole. 

Warrantless arrests of parole violators are also valid. The arrest of a parolee is

more like a mere transfer of the subject from constructive custody into actual or

physical custody.” United States v. Butcher, 926 F.2d 811, 814 (9th Cir. 1991)

(citations and internal quotation marks omitted). Nor is an escaped convict

entitled to the same Fourth Amendment protections as an ordinary citizen. “The

Fourth Amendment is not triggered anew by attempts at recapture because the

convict has already been ‘seized,’ tried, convicted, and incarcerated.” Gravely v.

Madden, 142 F.3d 345, 348 (6th Cir. 1998). Thus, escaped convicts may

generally be taken back into custody without a warrant or a hearing. Tavarez v.

U.S. Attorney Gen., 668 F.2d 805, 808 (5th Cir. 1982).

Under Oklahoma law, a convicted defendant who is at liberty without

having served his sentence “may be arrested as on escape and ordered into

custody on the unexecuted judgment.” Ex parte Smith, 190 P. 1092, 1092 (Okla.
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Crim. App. 1920); see also Hopkins v. North, 135 A. 367, 368 (Md. 1926) (“The

decided weight of authority, and, in our opinion, the better reasoned cases, hold

that, where a prisoner secures his liberty through some illegal or void order, it is

to be treated as an escape, and he can be retaken and compelled to serve out his

sentence . . . .”). 

Here, state officials took Appellant into custody in order for him to serve

his previously imposed sentences. This action was not improper. His erroneous

release from federal custody onto the street did not destroy Oklahoma’s claim to

legal custody over him. Because he was subject to an unfinished sentence,

Appellant, like a parole violator or an escaped convict, was not entitled to the full

protections of the Fourth Amendment. The state authorities evidently had reason

to believe that Appellant had not completed serving his state sentences. We hold

that this was a sufficient basis for his seizure and that no warrant was necessary

to take him into physical custody.

Appellant’s complaint does not allege any special circumstances that would

make his otherwise permissible arrest unreasonable under the Fourth Amendment. 

See Whren v. United States, 517 U.S. 806, 818 (1996) (“Where probable cause has

existed, the only cases in which we have found it necessary actually to perform

the ‘balancing’ analysis [to determine reasonableness under the Fourth

Amendment] involved searches or seizures conducted in an extraordinary manner,

unusually harmful to an individual’s privacy or even physical interests—such as,
-8-

for example, seizure by means of deadly force, unannounced entry into a home,

entry into a home without a warrant, or physical penetration of the body.”

(citations omitted)). We therefore conclude that the facts alleged in Appellant’s

complaint cannot demonstrate a violation of his Fourth Amendment rights. 

See Campbell v. Williamson, 783 F. Supp. 1161, 1164 (C.D. Ill. 1992) (finding no

constitutional violation where mistakenly released prisoner was detained without

warrant and returned to state custody to finish serving sentence).

Appellant further argues that his Fourteenth Amendment due process rights

were violated when he was transferred to the correctional facility without a

hearing. We disagree. As the Arizona Supreme Court pointed out in a similar

situation, a pre-detention hearing would serve no purpose. McKellar v. Ariz.

State Dept. of Corrs., 566 P.2d 1337, 1339 (Ariz. 1977). “Appellant has

committed no [new] wrong, so the state could allege none. The state would have

to assert the fact that appellant has not yet served [his full term of imprisonment],

and to that assertion appellant has no defense. In essence, granting appellant

‘procedural’ due process in this instance would be to grant him nothing.” Id. The

Fourth Circuit has similarly held: “A prisoner who is mistakenly released does

not have a protected liberty interest because, unlike a parolee, he does not have a

‘legitimate claim of entitlement’ to freedom. With no liberty interest to protect,

there is no violation of due process and no need for [a] pre-detention hearing[] . .

. .” Henderson v. Simms, 223 F.3d 267, 274-75 (4th Cir. 2000) (citation omitted). 
-9-

We find the reasoning of these cases persuasive. We also note that the

judgments in Appellant’s state convictions directed the county sheriff to deliver

Appellant to the Lexington Assessment and Reception Center for incarceration

pursuant to the sentences imposed and that no issue existed regarding Appellant’s

identity. Under the circumstances of this case, Appellant had no due process right

to a hearing when he was taken back into custody to complete his previously

imposed sentence. Thus, we conclude the facts alleged in Appellant’s complaint

cannot establish a violation of his Fourteenth Amendment due process rights.

Because the district court correctly determined that Appellant had not

shown the violation of a constitutional right, the court did not err in declining to

exercise supplemental jurisdiction over Appellant’s state law claim. See

Bauchman v. West High Sch., 132 F.3d 542, 549 (10th Cir. 1997) (“If federal

claims are dismissed before trial, leaving only issues of state law, ‘the federal

court should decline the exercise of jurisdiction by dismissing the case without

prejudice.’”) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988)).

For the foregoing reasons, we AFFIRM the district court’s dismissal of

Appellant’s claim. We GRANT Appellant’s motion to proceed in forma pauperis

on appeal, and we remind Appellant of his continuing obligation to make partial

payments until his filing fee has been paid in full.