McCoy (ID 76894) v. Hienschmidt et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's first motion 16 for leave to file amended complaint is denied as moot. Plaintiff's second motion 19 for leave to file amended complaint is granted. The clerk is directed to file the attached second amended complaint. This action is dismissed and all relief is denied as against all defendants not named in the second amended complaint. Plaintiff's claim under the Eighth Amendment is dismissed for failure to state a claim. Plaintiff 's motion 12 to appoint counsel is denied without prejudice. Plaintiff's motion 18 for status hearing is denied as moot. The clerk of the court shall prepare summons and waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. Signed by Senior District Judge Sam A. Crow on 2/20/2013. (Mailed to pro se party Deron McCoyby regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID MILLER, Law Enforcement
Officer, Hutchinson Police
Department, et al.,
MEMORANDUM AND ORDER
This matter is before the court upon plaintiff’s first Motion
for Leave to Amend Complaint (Doc. 16), Motion to Appoint Counsel
(Doc. 12), Motion for Status Hearing (Doc. 18), and second Motion
for Leave to Amend Complaint (Doc. 19) with proposed Amended
MOTION TO FILE SECOND AMENDED COMPLAINT
Plaintiff’s first Motion for Leave to Amend Complaint (Doc.
16) is denied as moot due to his filing of a subsequent motion.
Plaintiff’s second Motion for Leave to Amend Complaint (Doc. 19) is
granted, and the Amended Complaint attached to this motion shall be
filed as plaintiff’s Second Amended Complaint.
Amended Complaint (Doc. 13) is completely superseded by his Second
Amended Complaint, and is therefore no longer before the court.
Because Mr. McCoy is a prisoner, the court is required by
statute to screen his Second Amended 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);
28 U.S.C. § 1915(e)(2)(B).
The only defendant actually referred to by name in the
caption of the Second Amended Complaint is David Miller, Law
Enforcement Officer, Hutchinson Police Department (HPD).
paragraphs providing information regarding each defendant and in the
body of the complaint, plaintiff also names HPD Patrol Officer Chris
Shultz, HPD Patrol Officer Lee Campbell, and City Prosecutor Micheal
As Count I of his complaint, plaintiff claims that his rights
under the Fourth Amendment were violated by defendants Miller,
Shultz, and Campbell forcibly entering his residence without a search
warrant, consent, probable cause, or exigent circumstances and with
He further claims that these defendants violated his
rights by arresting him for obstruction on October 19, 2010, without
probable cause and without facts in support.
As Count II, plaintiff claims that his rights under the
Rule 10 of the Federal Rules of Civil Procedure require that all parties
be named in the caption of the complaint.
Eighth Amendment were violated.
As facts in support, he alleges that
on October 19, 2010, defendants Miller, Shultz and Campbell falsely
imprisoned him for a crime he did not commit; on October 20, 2010,
defendant Robinson “maliciously initiat(ed) criminal proceedings
against him after being made aware that there was no evidence to
support the charge of obstruction;” and that Robinson falsely
imprisoned him from March 22, 2011, through June 7, 2011, for a crime
he did not commit and of which he was found not guilty.
punitive damages, and costs of this action.
The court finds that plaintiff’s assertion that his rights under
the Eighth Amendment were violated has no legal merit.
Amendment scrutiny is appropriate only after the State has complied
with the constitutional guarantees traditionally associated with
criminal prosecutions. . . .
[T]he State does not acquire the power
to punish with which the Eighth Amendment is concerned until after
it has secured a formal adjudication of guilt in accordance with due
process of law.” Ingraham v. Wright, 430 U.S. 651, 671–672, n. 40
(1977); see Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979).
plaintiff alleges that he was never convicted.
Eighth Amendment has no application.
See City of Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244 (1983).
The court further finds that, accepting plaintiff’s fact
allegations in his Second Amended Complaint as true, a responsive
pleading is required.
The court has considered plaintiff’s Motion to Appoint Counsel
(Doc. 12), and finds it should be denied at this time, without
There is no right to appointment of counsel in a civil
rights action, plaintiff appears capable of presenting the facts in
support of his claims, and the matter is not complicated.
The court has considered plaintiff’s Motion for Status Hearing
(Doc. 18) and dismisses it as moot.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s first
Motion for Leave to File Amended Complaint (Doc. 16) is denied as
moot, that plaintiff’s second Motion for Leave to File Amended
Complaint (Doc. 19) is granted, and the clerk is directed to file
the attached Second Amended Complaint.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied as against all defendants not named in the Second
Amended Complaint, and that plaintiff’s claim under the Eighth
Amendment is dismissed for failure to state a claim.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint Counsel
(Doc. 12) is denied without prejudice, and plaintiff’s Motion for
Status Hearing (Doc. 18) is denied as moot.
IT IS FURTHER ORDERED that the clerk of the court shall prepare
summons and waiver of service forms pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure, to be served on defendants by a
United States Marshal or a Deputy Marshal at no cost to plaintiff
absent a finding by the court that plaintiff is able to pay such costs.
Copies of this Order shall be transmitted to plaintiff, to
defendants, and to the Finance Officer at the institution where
plaintiff is currently incarcerated.
IT IS SO ORDERED.
Dated this 20th day of February, 2013, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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