Harvey v. Williams et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $8.50. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 9/13/2011. (Mailed to pro se party Levi Lloyd Harvey by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LEVI LLOYD HARVEY,
Plaintiff,
v.

CASE NO.

11-3139-SAC

NORMAN D. WILLIAMS,
Chief of Police, Wichita
Police Department,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint, 42 U.S.C. § 1983, was filed pro se by
a state prisoner currently confined at the Hutchinson Correctional
Facility, Hutchinson, Kansas. In the caption, plaintiff names four
defendants: Norman D. Williams, Chief, Wichita Police Department
(WPD); Lt. Steven A. Kenney, Instructor, Professional Standards
Bureau (PSB); Wichita City Manager; and Det. Augustus E. Ross, WPD.
Plaintiff lists 4 additional defendants that are not in the
caption: Officer Brian Arterburn, WPD; John Doe I, WPD (supervisor
of defendant Arterburn); Officer Jane Doe, WPD; and Detective John
Doe II, WPD.
Plaintiff attaches several exhibits and narratives to the
inside of his form complaint.

From these materials, the factual

background of the complaint appears to be as follows. On September

14, 2008,1 WPD Officer Arterburn “tazed” Mr. Harvey after he had
surrendered and held his hands in the air.

Arterburn then removed

the “tazer prods” causing plaintiff to “bleed excessively.”

The

female officer who booked plaintiff into the Sedgwick County Jail
(SCJ) would not tell him how to file a complaint on “all that had
occurred before transport to jail.”

While plaintiff was in the

jail, he wrote a complaint to “internal affairs,” and in response
the PSB sent him “a weaver (sic) form for appointed attorney to
allow questioning or to await outcome of all pending cases before
(he) could pursue this complaint.”

Upon his release from jail,

plaintiff went to the PSB at City Hall and spoke with “Det Chaney”
who photographed his blood-soaked gray sweatshirt.

Plaintiff’s

attachments indicate that on March 6, 3011, he received a letter
from Lt. Steven A. Kenney on behalf of the PBS of the Wichita
Police Department, in which he was informed that the internal
investigation on his complaint that had focused on Officer Brian D.
Arterburn had been completed and the finding was “Exonerated.”
Plaintiff also exhibits an “Appeal” that he wrote and dated March
9, 2011, to defendant Chief of Police Williams, in which he
challenged the investigation.

Plaintiff attaches the written

response of defendant Williams dated March 24, 2011, in which
defendant Williams stated:
from

During your interview, you stated you ran
the police because you thought you had

1

On-line records of the Kansas Criminal Justice Information System
indicate that Mr. Harvey was sentenced in Sedgwick County in August 2009 for the
offense of “Opiates, Opium or Narcotic Drugs; Possession; 1st Off” committed on
September 14, 2008, and that he has two other active cases from earlier offenses.

2

warrants for your arrest. After being ordered to
stop, you stated you placed your hands in the air
and began to turn towards the officer.
The
officer then deployed his Taser striking your arm.
Neither you nor the officer articulated any
additional force during your arrest.
A cursory review of your arrest record from
2000 to 2005 indicates you have a propensity for
violence.
You were arrested twice in 2000 for
Battery, once in 2001 and 2003 for Battery, twice
in 2004 for Battery and once in 2005 for Battery.
. . .
Plaintiff’s request for City Manager Review Board was denied due to
plaintiff’s incarceration.

CLAIMS AND REQUESTED RELIEF
As Count I of this complaint, plaintiff asserts “hendering
(sic) an investigation, obstructing justice”, violation of due
process, legal malpractice, and excessive force.

He alleges in

support that defendant Artenburn did not need to use a taser to
apprehend him, and that Artenburn is not a medical professional and
should not have removed the taser prods. He further claims that he
should not have been transported to the jail before being examined
by medical professionals for the loss of blood, which he claims
could have been fatal.2

In attachments, he states that the medical

staff person at the “SCADF” was at best an LPN.

He notes that Det.

Chaney indicated that the police report stated that he was seen by
an EMS.
As

Count

II,

plaintiff

asserts

cruel

and

unusual

2
Plaintiff’s allegations regarding a delay in the filing of charges
are not clear and are not supported by sufficient fact allegations. Nor do they
appear at all relevant to his claim of excessive force.

3

punishment.

In support, he refers to his blood-soaked gray

sweatshirt.
As Count III, plaintiff asserts excessive force.

In

support, he re-alleges that he had already surrendered and his arms
were in the air.
The relief requested by plaintiff is not at all clear, but
appears to be an order that “the facts of this case” not be
suppressed and a declaration that law enforcement personnel should
not break the law while apprehending someone.

FILING FEE
The fee for filing a civil rights complaint is $350.00.
Plaintiff has neither paid the fee nor filed a complete Application
to Proceed Without Prepayment of Fees containing an affidavit on
court-approved forms. Mr. Harvey is again forewarned that under 28
U.S.C.

§1915(b)(1),

being

granted

leave

to

proceed

without

prepayment of fees does not relieve a plaintiff of the obligation
to pay the full amount of the filing fee.

Instead, it entitles him

to pay the fee over time through payments automatically deducted
from his inmate trust fund account as authorized by 28 U.S.C.
§1915(b)(2).3

Mr. Harvey will remain obligated to pay the $350 fee

for each civil case that he has filed in this court.
Plaintiff has submitted an Inmate Account Statement as

3

Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is currently confined will be authorized to collect twenty percent
(20%) of the prior month’s income each time the amount in plaintiff’s account
exceeds ten dollars ($10.00) until the filing fee has been paid in full.

4

statutorily

mandated

(Doc.

2).

Pursuant

to

28

U.S.C.

§

1915(b)(1), the court is required to assess an initial partial
filing fee of twenty percent of the greater of the average monthly
deposits or average monthly balance in the prisoner’s account for
the six months immediately preceding the date of filing of a civil
action.

Having examined the records of plaintiff’s account made

available at this time, the court finds the average monthly deposit
to plaintiff’s account over that period has been $ 44.57, and the
average monthly balance has been $ 14.43.

The court therefore

assesses an initial partial filing fee in this case of $ 8.50,
twenty percent of the average monthly deposit, rounded to the lower
half dollar.

Plaintiff must pay this initial partial filing fee

before this action may proceed further, and will be given time to
submit the fee to the court.

His failure to submit the initial fee

in the time allotted may result in dismissal of this action without
further notice.

SCREENING
Because Mr. Harvey is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such relief.

28 U.S.C. § 1915A(a) and (b).

Having screened all

materials filed, the court finds the complaint is subject to being
dismissed for reasons that follow.

5

STATUTE OF LIMITATIONS BAR
The applicable statute of limitations in § 1983 actions is
determined

from

looking

at

the

appropriate

state

limitations and the governing tolling principles.

statute

of

See Hardin v

Straub, 490 U.S. 536, 539 (1989); Brown v. Unified School Dist.
501,

Topeka

Public

Schools,

465

F.3d

1184,

1188

(10th

Cir.

2006)(“The forum state’s statute of limitations for personal injury
actions governs civil rights claims under” 42 U.S.C. § 1983.).
Thus the two-year statute of limitations provided by Kansas law
applies to this action. While the length of the limitations period
is governed by state law, “the accrual date of a § 1983 cause of
action is a question of federal law that is not resolved by
reference to state law.”
(2007).

Wallace v. Kato, 549 U.S. 384, 388

Under federal law, the claim accrues “when the plaintiff

has a complete and present cause of action.”

Id. at 388; Fogle v.

Pierson, 435 F.3d 1252 1258 (10th Cir.), cert. denied, 549 U.S. 1059
(2007)(“A § 1983 action accrues when facts that would support a
cause of action are or should be apparent.”).
On the face of the complaint, plaintiff alleges that
defendant Arterburn, violated his constitutional rights by using
excessive force during his arrest4 and by removing taser prods from

4
In addressing an excessive force claim, the issue is whether the
arresting officer’s actions were objectively reasonable. See Graham v. Connor,
490 U.S. 386, 397 (1989); Brooks v. Gaenzle, 614 F.3d 1213, 1219 (10th Cir.
2010)(citing Bella v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir. 1994)(“To state
a claim of excessive force under the Fourth Amendment a plaintiff must show both
that a “seizure’ occurred and that the seizure was ‘unreasonable’.”). Relevant
factors in making this determination include the severity of the crime, whether
the subject posed an immediate threat to the safety of the officers or others,
and whether the subject was resisting arrest or attempting to evade arrest. Id.

6

his body5 on September 14, 2008.

He also complains of actions by

defendant Doe who was Officer Arterburn’s supervisor on that day,
and that he was not provided adequate medical attention for
bleeding caused by Arterburn’s removal of the taser prods.6

The

plaintiff filed his civil rights complaint on July 21, 2011, more
than two years after the alleged violations occurred.

Nothing in

the record suggests any factual basis for statutory or equitable
tolling.

It is thus obvious from the face of the complaint that

plaintiff’s § 1983 claims based upon events that occurred at the
time of his arrest were not timely filed and are barred by the
statute of limitations.

FAILURE TO STATE A FEDERAL CONSTITUTIONAL CLAIM
The other defendants named in the complaint are not alleged

490 U.S. at 396.

In Graham, the Supreme Court further explained:

[T]he “reasonableness” of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight. . . . With respect to a
claim of excessive force . . . [n]ot every push or shove, even if it
may later seem unnecessary in the peace of a judge's chambers . . .
violates the Fourth Amendment. The calculus of reasonableness must
embody allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.
Id. at 396–97 (internal citations and quotations omitted).
5
Plaintiff’s allegations that defendant Arterburn was not qualified
to remove the prods and that he could not have received adequate medical
attention from an LPN at the jail are not shown to be based upon anything other
than his lay opinion, and are not sufficient to establish that he was denied
necessary medical treatment by any defendant.
6

Plaintiff also complains about actions of the transporting and
booking officer or officers on that day, and an alleged inaccuracy in the police
report. These acts, even if they presented any constitutional claim, are also
barred by the two-year statute of limitations.

7

to have been involved in plaintiff’s arrest, injury or transport to
the jail.

As far as the court can discern, those defendants are

Chief of Police Williams, Detective Augustus E. Ross, Lt. Kenney,
a John Doe WPD Detective that conducted an interview along with
Kenney at the PSB, as well as John Doe Wichita City Manager.
Plaintiff’s claims against all but one of these defendants appear
to be based upon his dissatisfaction with the administrative
hearing process and responses he received from the PSB as to his
request for an investigation regarding his arrest and a delay of
charges that he addressed to Internal Affairs.
To state a claim for relief in federal court under 42
U.S.C. § 1983, “a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting
under color of state law.”

West v. Atkins, 487 U.S. 42, 48-49

(1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978));
Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

In

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, --- U.S. ---- (2009), the United States Supreme Court
held that a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on
its face.”
570).

Iqbal, 129 S.Ct. at 1949 (quoting Bell, 550 U.S. at

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.

A court liberally construes a pro se complaint and applies
8

“less

stringent

lawyers.”

standards

Erickson

v.

than
Pardus,

formal
551

pleadings
U.S.

89,

drafted
94

by

(2007).

Nevertheless, a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon
which relief can be based.”
(10th Cir. 1991).

Hall v. Bellmon, 935 F.2d 1106, 1110

The court “will not supply additional factual

allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).

The complaint’s “factual

allegations must be enough to raise a right to relief above the
speculative level.”
omitted).

Twombly, 550 U.S. 544, 555 (2007)(citation

Put another way, there must be “enough facts to state a

claim to relief that is plausible on its face.”

Id. at 570.

“[W]hen the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate.
Twombly, 550 U.S. at 558.
None of the facts alleged by plaintiff suggests that this
court has jurisdiction to review the process and decision of the
Professional Standards Bureau of the Wichita Police Department.
Nor do plaintiff’s allegations or his exhibits of the written
responses he received indicate that any federal constitutional
violation transpired during these city agency proceedings.7

The

7
Plaintiff states that he was not allowed to initiate his inquiry
until he was released from jail. However, his allegations indicate that he could
have done so had he and his appointed attorney executed a waiver allowing him to
talk to city officials about his complaints. Plaintiff’s detailed discussion of
what occurred at the interview mainly reveals his disagreement with the findings
and conclusion of the agency.

9

court is not obliged, and is at a loss, to construct a legal theory
on

plaintiff’s behalf for a claim in federal court.
Plaintiff’s claims against defendant Ross are even more

difficult to decipher.

He appears to be claiming that the charges

underlying his arrest and of which he was eventually convicted were
somehow improperly delayed.

To the extent plaintiff may be

claiming that he was wrongfully imprisoned as a consequence of this
delay, his only remedy in federal court is by petition for writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254.8

He may not

challenge the legality of his confinement in a civil rights
complaint.
The court finds from the foregoing that this action is
subject to being dismissed under 28 U.S.C. § 1915A and 28 U.S.C. §
1915(e)(2)(B) because plaintiff’s claims are either time-barred or
utterly fail to state a federal constitutional claim.

Plaintiff

will be given time to show cause why this action should not be
dismissed for these reasons.

He is forewarned that if he fails to

show sufficient cause within the time allotted, this action may be
dismissed without further notice.

The court further finds that if

plaintiff cannot show sufficient cause, this action should be
treated as a strike pursuant to 28 U.S.C. § 1915(g).9

8

Furthermore, habeas claims may not be raised in federal court until
all remedies available in the state courts have been fully and properly
exhausted.
9

Section 1915(g) provides:

In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or

10

IT IS THEREFORE BY THE COURT ORDERED that plaintiff is
granted thirty (30) days in which to submit to the court an initial
partial filing fee of $ 8.50.

Any objection to this order must be

filed on or before the date payment is due.

The failure to pay the

fees as required herein may result in dismissal of this action
without prejudice.
IT IS FURTHER ORDERED that within the same thirty-day
period, plaintiff is required to show cause why this action should
not be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated this 13th day of September, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

detained in any facility, brought an action or appeal in a court
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.
Id. If plaintiff acquires two more strikes, he will be required to “pay up front
for the privilege of filing . . . any additional civil actions,” unless he can
show “imminent danger of serious physical injury.” 28 U.S.C. 1915(g); Jennings
v. Natrona County Detention Center, 175 F.3d 775, 778 (10th Cir. 1999).

11