Harvey v. Williams et al

Filing 8

ORDER ENTERED: This action is dismissed and all relief is denied. Plaintiff's motion 5 for leave to proceed without prepayment of fees is provisionally granted for the sole purpose of dismissing this action. Plaintiff's motion 4 to appoint counsel is denied as moot. Signed by Senior District Judge Sam A. Crow on 6/19/2012. (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.
O R D E R
On September 13, 2011, the court entered an order, upon
screening the complaint filed herein, and found the following
deficiencies: failure to either pay the filing fee or submit a
complete Application to Proceed Without Prepayment of Fees and that
plaintiff’s

claims

are

barred

by

the

applicable

statute

of

limitations and utterly fail to state a federal constitutional
violation.

Plaintiff was given time to satisfy the filing fee

prerequisites, pay an initial partial filing fee of $8.50, and show
cause why this action should not be dismissed under 28 U.S.C. ' 1915A
and 28 U.S.C. ' 1915(e)(2)(B).
Plaintiff has since filed a Motion for Appointment of Counsel
(Doc. 4), an Application to Proceed without Prepayment of Fees on
forms (Doc. 5), and a document entitled “Complaint for Money Damages”
(Doc. 6), which the clerk docketed as his Response to the court’s
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screening order.

Having considered these filings, the court finds

that plaintiff has failed to show cause why this action should not
be dismissed for the reasons stated in the court’s Order of September
13, 2011.

Accordingly, this action is dismissed.

Plaintiff’s “Complaint for Money Damages,” if treated as an
Amended Complaint, is not upon forms as required by local rule.

An

Amended Complaint completely supersedes the original complaint, and
since the new complaint contains no counts or facts in support, it
also utterly fails to state a federal constitutional claim.

In this

document plaintiff does manage to list all defendants after the
title, though still not in the caption as required by Rule 10 of the
Federal Rules of Civil Procedure.

Many of the defendants are merely

described as “responsible” to serve and protect citizens of Wichita
Kansas.

This “complaint” plainly fails to address one of the main

deficiencies set forth in the court’s screening order, that plaintiff
does not allege facts sufficient to state a federal constitutional
violation.
If this document were treated as plaintiff’s response to show
cause why this action should not be dismissed, which he was ordered
to file, it likewise utterly fails to address his failure to state
facts sufficient to present a plausible claim that his federal
constitutional rights were violated by any defendant.
Plaintiff’s initial complaint concerned his being tazed
during his 2008 arrest and an officer’s removal of the tazer prods,

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which caused him to bleed, as well as the denial of adequate medical
follow-up.

The court found not only that these claims appeared to

be time-barred, but that his allegations regarding the removal of
the

prods

and

denial

of

adequate

medical

care

by

allegedly

unqualified persons were not based upon anything other than his lay
opinion, and thus failed to establish a constitutional claim.

With

respect to defendants that were named and not involved in plaintiff’s
arrest or medical treatment, the court found that plaintiff stated
no federal constitutional claim based upon his challenges to the
police department’s administrative investigation and proceedings.
Plaintiff does not allege additional facts to show that his being
tazed and having the prods removed by the arresting officer, hia being
provided medical attention by an LPN for the bleeding, or the
subsequent administrative proceedings violated his constitutional
rights.
Plaintiff does make some effort to argue that his claims are
not time-barred.
circumstances

he

However, the court is not convinced by the
describes.

Plaintiff’s

allegations

that

he

refused to be questioned, which delayed administrative proceedings;
and that he lacked legal knowledge do not amount to circumstances
beyond his control or that entitle him to tolling of the statute of
limitations.
Plaintiff inserts inside his Complaint/Response a letter to
the undersigned judge that he has also attached to documents in other

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cases.

This letter has no relevance to the claims raised in this

complaint.
The court concludes for the foregoing reasons and for the
reasons stated in its screening order that this action must be
dismissed as time-barred, for failure to state a claim, and as
frivolous.

The court further finds that this dismissal qualifies

as a strike under 28 U.S.C. § 1915(g).
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed and all relief is denied.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to
Proceed without Prepayment of Fees (Doc. 5) is provisionally granted
for the sole purpose of dismissing this action, and that his Motion
to Appoint Counsel (Doc. 4) is denied as moot.
IT IS SO ORDERED.
Dated this 19th day of June, 2012, at Topeka, Kansas.

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

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