Shelton v. Harper County Sheriff's Department et al

Filing 13

ORDER ENTERED: Plaintiff's motion 10 to add and amend is granted in part and denied, without prejudice, in part. Plaintiff is granted to and including September 24, 2012, to explain the personal involvement of each defendant he seeks to add and to show cause why the waiver provision in the plea agreement does not bar this matter. The failure to file a timely response may result in the dismissal of this action without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 8/24/2012. (Mailed to pro se party Wesley J. Shelton by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WESLEY J. SHELTON,
Plaintiff,
v.

CASE NO. 11-3101-SAC

HARPER COUNTY SHERIFF’S DEPARTMENT,
et al.,
Defendants.

ORDER
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983 by an incarcerated person. Plaintiff proceeds pro se
and in forma pauperis. By an earlier order, the court identified
certain deficiencies in the complaint and granted plaintiff time to
submit an amended complaint. Plaintiff filed a response (Doc. 7) and
later filed a motion to add and amend complaint (Doc. 10).
Plaintiff’s original complaint alleges he was subjected to
excessive force incident to his arrest, and his response explains
that the arrest occurred on March 9, 2010, in a residence in Attica,
Kansas. The response states that the arrest was executed by three
unnamed officers who announced themselves as “Sherriff’s Department”
before shooting plaintiff with a tazer. (Doc. 9, p. 2.) Plaintiff
states he fell to the floor, where officers handcuffed him and
picked him up. Plaintiff experienced pain in his right shoulder, and
officers placed him back on the floor in response to that complaint,
then picked him up more gently and took him outside to wait for an

ambulance. The officers refused to move his handcuffs on the front
of his body.
In plaintiff’s motion to add and amend (Doc. 10), he moves to
increase the amount of damages sought, requests a jury trial, and
asks that Kansas State Trooper Winters, Officer Brad Moore, and two
unknown officers be added to the complaint. Finally, plaintiff
identifies Greg Schnied as a witness to the arrest.
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,
a plaintiff may amend his pleadings once as a matter of course. The
court will allow plaintiff’s motion to the extent he increases his
request for damages and adds a request for a jury trial.
However, to the extent plaintiff seeks to add defendants,
plaintiff must allege personal participation by each defendant to an
action brought pursuant to 42 U.S.C. § 1983. “Personal participation
is an essential allegation in a Section 1983 claim.” Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)(citations omitted).
See

also

Fogarty

2008)(individual

v.

Gallegos,

liability

in

523

action

F3d
under

1147
§

(10th

1983

Cir.

requires

defendant’s personal involvement in the alleged violation). Because
plaintiff has not identified any such involvement by the persons he
seeks to add as defendants, the court will deny that portion of his
request without prejudice. Plaintiff may supplement the motion

to

add an explanation of the specific factual basis supporting the
inclusion of each defendant, and the court will reconsider the
proposed amendment.
Next, the court takes notice that plaintiff entered a guilty
2

plea in the federal criminal action against him.1 As part of the
plea agreement, plaintiff accepted the following provision:
13. Waiver of Appeal and Collateral Attack. The defendant
knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this
prosecution, the defendant’s conviction, or the components
of the sentence to be imposed here including the length
and conditions of supervised relief. [....]

The

court

will

direct

plaintiff

to

show

cause

why

this

provision does not bar the present civil rights action.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to
add and amend (Doc. 10) is granted in part and denied, without
prejudice, in part.
IT IS FURTHER ORDERED plaintiff is granted to and including
September 24, 2012, to explain the personal involvement of each
defendant he seeks to add and to show cause why the waiver provision
in the plea agreement does not bar this matter. The failure to file
a timely response may result in the dismissal of this action without
additional prior notice to the plaintiff.
A copy of this order shall be transmitted to the plaintiff.

1

Case No. 09-cr-10132-EFM.
3

IT IS SO ORDERED.
DATED:

This 24th day of August, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

4