McCoy (ID 76894) v. Hienschmidt et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 3 for leave to amend is granted. Plaintiff is granted thirty (30) days in which to submit to the court either the filing fee of $350.00 or a motion to proceed without prepayment of fees o n court-approved forms that is properly supported with a certified copy of his inmate account for the six-month period immediately preceding the filing of this action. Within the same thirty-day period, plaintiff is required to file a First Amended Complaint upon court-provided forms that cures the deficiencies discussed herein. Signed by Senior District Judge Sam A. Crow on 4/18/2012. (Mailed to pro se party DeRon McCoy, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON McCOY,
Plaintiff,
v.

CASE NO.

12-3050-SAC

DICK HIENSCHMIDT,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint was filed pursuant to 42 U.S.C. § 1983 by
an inmate currently confined at the El Dorado Correctional Facility,
El Dorado, Kansas (EDCF).

Having reviewed the materials filed, the

court has found deficiencies.

Plaintiff is ordered to file an

Amended Complaint, in which he cures the deficiencies discussed
herein.

FILING FEE
At the outset the court notes Mr. McCoy has not paid the
statutory district court filing fee of $350.00 for this civil rights
complaint.

Nor has he submitted a motion for leave to proceed

without prepayment of fees.

This action may not proceed until

plaintiff satisfies the filing fee in one of these two ways.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit an affidavit described in
subsection (a)(1), and a “certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the
six-month period immediately preceding the filing” of the action

“obtained from the appropriate official of each prison at which the
prisoner is or was confined.”

28 U.S.C. § 1915(a)(2).

The inmate

is required to obtain these financial records from each institution
at which he was confined during the relevant time period and to
submit them to the court.

If Mr. McCoy does not satisfy the filing

fee prerequisite within the time allotted, this action may be
dismissed without further notice.

The clerk shall be directed to

send plaintiff forms for filing a proper motion under § 1915(a).
Mr. McCoy is forewarned that under 28 U.S.C. § 1915(b)(1), a
prisoner granted leave to proceed without prepayment of fees is not
relieved of the obligation to pay the full filing fee of $350.00 for
each civil action that he files.

Instead, being granted such leave

merely entitles him to pay the fee over time through payments
automatically

deducted

from

his

inmate

authorized by 28 U.S.C. § 1915(b)(2).1

trust

fund

account

as

Furthermore, § 1915(b)(1)

requires the court 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.

The

court will determine the appropriate partial fee assessment after
plaintiff provides the requisite financial information.

COMPLAINT NOT UPON FORMS
The local rules of this court require that § 1983 complaints
filed pro se be submitted upon court-approved forms.

1

D.Kan.Rule

Pursuant to § 1915(b)(2), the Finance Office of the facility where
plaintiff is confined will be directed 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 $350 filing fee has been paid in full.

2

9.1(a).

Plaintiff is thus required to submit his complaint upon

forms sent to him by the clerk.
Plaintiff has filed a Motion for Leave to File an Amended
Complaint (Doc. 3).

He is entitled to amend his complaint once

without leave of court, so the motion was unnecessary and will be
granted.

However, a plaintiff does not amend his complaint by

simply filing a motion for leave to amend and setting forth in the
motion the claims and/or parties he wants to add, as Mr. McCoy has
done here.

Instead, Mr. McCoy should have prepared a complete

amended complaint, and attached his proposed amended complaint to
his motion for leave.

See Fed.R.Civ.P. Rule 15.

Furthermore, an

amended complaint is not simply combined with the original complaint
but completely supercedes it, and therefore must name all parties
and contain all claims the plaintiff intends to pursue in the action
including those raised in the original complaint.

Any claims,

parties, allegations, or arguments not included in the amended
complaint are no longer before the court.
Plaintiff is ordered to file a “First Amended Complaint” upon
court-provided forms.

He must write “First Amended Complaint” and

case number 12-3050 on the first page of his form complaint.

ALLEGATIONS AND CLAIMS
As the factual background for this complaint, plaintiff alleges
as follows.
Campbell,

law

On October 19, 2010, defendants Miller, Shultz and
enforcement

officers

for

the

Hutchinson

Police

Department (HPD), showed up at plaintiff’s residence in Hutchinson,
Kansas, and demanded entry without a search warrant.

Plaintiff’s

exhibit indicates that the HPD had been “contacted with a safety
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concern at (this residence).”

Plaintiff and his girlfriend advised

defendants that they would not allow entry without a warrant.
Nevertheless, defendant Miller instructed defendant Schultz to kick
the back door open; and the three officers entered the residence
without a warrant and with their weapons drawn.

The defendants

arrested plaintiff and his girlfriend for obstruction of legal
process based on their behavior during the entry, and placed their
2-month-old child in police protective custody.

On May 2, 2011,

plaintiff appeared in municipal court for a bench trial.

He was

found not guilty in an order issued June 7, 2011, wherein the judge
stated that he did “not believe that a person exercising their
constitutional right to be free from unreasonable searches and
seizures can be found guilty” of obstruction.
Plaintiff claims that breaking the door, entry without a
warrant or consent, aiming weapons at him, arresting him on a bogus
charge, and taking his infant daughter violated his constitutional
rights, including his right to due process and his rights to be free
from unreasonable search and seizure as well as cruel and unusual
punishment.2

He seeks “a preliminary and permanent injunction

2
The court construes plaintiff’s claims regarding his arrest as
asserting violation of his Fourth and Fourteenth Amendment rights. The Fourth
Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,” and
therefore “the right of individuals to be free from improper arrest.” Buck v.
City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008); see U.S. CONST. amend.
IV.
“[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).
“Accordingly, when a warrantless arrest is the subject of a § 1983 action, in
order to succeed, a plaintiff must prove that the officer(s) lacked probable
cause.”
Buck, 549 F.3d at 1281.
“Probable cause exists if the facts and
circumstances known to the officer warrant a prudent man in believing that the
offense has been committed.” Henry v. United States, 361 U.S. 98, 102 (1959);
Steagald v. U.S. 451 U.S. 204, 216 (1981)(“warrantless searches of a home are
impermissible absent consent or exigent circumstances”). Plaintiff’s allegations
that the officers entered his residence without either a warrant or consent are
accepted as true. However, plaintiff’s exhibit suggests that the officers arrived
at the residence in response to a call regarding a safety issue, and thus that

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ordering defendants (Miller, Shultz and Campbell) to stop any
profiling or harassment of plaintiff” and to start respecting his
rights.

He also seeks compensatory and punitive damages along with

costs.

SCREENING
Because Mr. McCoy 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.

1915(e)(2)(B).

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

Having screened the materials filed by Mr. McCoy,

the court finds the original complaint contains the following
deficiency that must be cured by plaintiff.

PERSONAL PARTICIPATION OF ALL DEFENDANTS NOT ALLEGED
An

essential

element

of

a

civil

rights

claim

against an

individual is that person’s direct personal participation in the
acts or inactions upon which the complaint is based.

Trujillo v.

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)(A defendant’s direct
personal

responsibility

for

the

claimed

deprivation

of

a

constitutional right must be established); Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996); Olson v. Stotts, 9 F.3d 1475, 1477
(10th

Cir.

1993)(affirming

district

court’s

dismissal

where

there may have been exigent circumstances. “The Supreme Court has made clear .
. . that police may enter a home without a warrant where they have an objectively
reasonable basis for believing that an occupant is seriously injured or imminently
threatened with such injury.” West v. Keef, 479 F.3d 757, 759 (10th Cir. 2007);
United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006).

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“plaintiff

failed

defendants”).

to

allege

personal

participation

of

the

It is well-established that a supervisor may not be

held liable solely on the basis of his or her supervisory capacity
for the acts of his subordinates.

Rizzo v. Goode, 423 U.S. 362, 371

(1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994),
cert. denied, 513 U.S. 1183 (1995).

Instead, to be held liable

under § 1983, a supervisor must have personally participated or
acquiesced in the complained-of constitutional violations. Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948 (2009)(Government
officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior, and
plaintiff

must

plead

that

each

Government-official

defendant,

through the official’s own individual actions, has violated the
Constitution.);
1988);

Fogarty

Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir.
v.

Gallegos,

523

F.3d

1147,

1162

(10th

Cir.

2008)(“the defendant’s role must be more than one of abstract
authority over individuals who actually committed a constitutional
violation.”).
Plaintiff
Police,

HPD;

Department;

names
Randy

Michael

as

defendants

Henderson,
C.

Dick

Sheriff,

Robinson,

City

Hienschmidt,

Chief

Reno

Sheriff’s

County

Prosecutor;

Larry

of

Dyer,

Captain, Reno County Jail; and HPD law enforcement officers David
Miller, Chris Shultz, and Lee Campbell. The only defendants who are
alleged to have participated in the factual scenario described by
plaintiff in his original complaint are defendants Miller, Shultz,
and Campbell.

Plaintiff does not describe any acts taken by the

other named defendants.

Nor does he describe any unconstitutional

policy or custom and allege it was established by the supervisory
6

defendants.

Plaintiff’s general

allegations that the defendants

are “legally responsible for” overall operations, officers, and the
jail are clearly not sufficient to allege the personal participation
of defendants Hienschmidt, Henderson, Robinson, or Dyer in the acts
upon

which

this

complaint

is

based.

Plaintiff

must

allege

additional facts in his First Amended Complaint showing the personal
participation of each defendant in unconstitutional acts, and not
just conclusory statements and “formulaic recitations.”
this action

will

be

dismissed

as against

any

Otherwise,

defendant

whose

personal participation is not sufficiently alleged.

OTHER MATTERS
Plaintiff fails to allege any facts whatsoever to support his
requests for injunctive relief.

He alleges no facts showing any

profiling or discrimination against him by defendants, and none to
establish that defendants will violate his rights in this manner in
the future unless this court’s grants injunctive relief.
If plaintiff is attempting to raise a claim of malicious
prosecution or false imprisonment, he does not plainly present any
such a claim or allege sufficient facts in support.

He does not

provide the dates of his imprisonment on the charge of obstruction
or the date and outcome of his first appearance or other probable
cause proceeding on this charge.

Nor does he refer to the person or

persons who initiated or continued criminal proceedings against him
and allege facts indicating they acted with malice.
Plaintiff included correspondence to the clerk with his Motion
for Leave to Amend in which he asked for the name of defendant’s
attorney and when the complaints and summonses he prepared would be
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served.

At this point no defendant has been served, and thus no

attorney for defendant has entered an appearance in this case.
Plaintiff will be preparing a different First Amended Complaint.
The court will direct service of summons only after the filing fee
has been satisfied and the screening process is completed and only
if the Amended Complaint survives screening.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion
for Leave to Amend (Doc. 3) is granted.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court either the filing fee of
$350.00 or a motion to proceed without prepayment of fees on courtapproved forms that is properly supported with a certified copy of
his inmate account for the six-month period immediately preceding
the filing of this action.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to file a First Amended Complaint upon courtprovided forms that cures the deficiencies discussed herein.
The clerk is directed to send plaintiff § 1983 forms and forms
for filing a motion to proceed without prepayment of fees together
with a copy of this Memorandum and Order.
IT IS SO ORDERED.
Dated this 18th day of April, 2012, at Topeka, Kansas.

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

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