McCoy (ID 76894) v. Meyers et al
Filing
8
ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is granted based upon the incomplete information presented and subject to alteration upon the receipt of contrary evidence. Plaintiff is herbey assessed the full filin g fee for this action of $350.00. Plaintiff is granted thirty (30) days in which to show cause why this action should not be dismissed. Plaintiff's motion 6 for counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 10/16/2012. (Mailed to pro se party DeRon McCoy by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DeRon McCOY,
Plaintiff,
v.
CASE NO.
12-3160-SAC
TYSON MEYERS,
et al.,
Defendants.
O R D E R
This civil complaint was filed pro se pursuant to 42 U.S.C. §
1983 by Mr. McCoy while he was an inmate of the Sedgwick County Jail,
Wichita, Kansas (SGCJ).
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
Plaintiff
has
filed
Prepayment of Fees (Doc. 2).
an
Application
to
Proceed
without
His application technically does not
comply with the statutory prerequisites.
28 U.S.C. § 1915 requires
that a prisoner seeking to bring a civil action without prepayment
of fees submit a “certified copy of the trust fund account statement
(or institutional equivalent) for the prisoner for the 6-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).
1
However, plaintiff alleges
that he cannot provide this financial information because the SGCJ
does “not provide that service.”
Plaintiff supports this allegation
with a copy of his request for his inmate account information for
his two other pending cases that was denied.
The court grants
plaintiff leave, subject to its receipt of any contrary information.
Plaintiff is reminded that pursuant to 28 U.S.C. § 1915(b)(1),
he remains obligated to pay the full $350.00 district court filing
fee in this civil action.
Being granted leave to proceed in forma
pauperis entitles him to pay the filing fee over time through payments
from his inmate trust fund account as authorized by § 1915(b)(2).
Pursuant to § 1915(b)(2), the Finance Office of the facility where
plaintiff is confined is directed by copy of this Order 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.
Plaintiff is directed to cooperate fully
with his custodian in authorizing disbursements to satisfy the filing
fee, including but not limited to providing any written authorization
required by the custodian or any future custodian to disburse funds
from his account.
ALLEGATIONS & CLAIMS
Plaintiff names as defendants five employees of the Hutchinson
Police Department (HPD) and states that they were members of the HPD
Emergency Response Team.
As the factual background for his
2
complaint he alleges as follows.
On March 22, 2011, 1 defendants
entered his hotel room in Hutchinson without a warrant “under the
guise of” responding to an emergency and physically assaulted and
choked him when he was not resisting arrest.
After he was handcuffed
and placed in restraints, defendants continued to severely beat and
choke him.
He was taken to the hospital where x-rays and photographs
were taken.
He was treated for a neck injury, and had multiple cuts,
scrapes, bruises.
He also suffered “severe memory loss and dementia
from the head and brain injuries.”
Plaintiff claims that defendants violated his rights under the
Fourth Amendment to be free from unreasonable seizure, the Eighth
Amendment to be free from cruel and unusual punishment, and the
Fourteenth Amendment to due process.
He seeks money damages.
SCREENING
Because Mr. McCoy is a prisoner suing government officials, 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. § 1915(e)(2)(B).
28 U.S.C. § 1915A(a) and (b);
A court liberally construes a pro se
1
Plaintiff must immediately inform the court if March 22, 2011, is not the
correct date. He wrote 2011 on two pages of his complaint and 2010 on another,
but altered the two 2011’s from 2010’s. If the alleged events occurred in March
2010, plaintiff’s claims based thereon may be barred by the two-year statute of
limitations.
3
complaint
and
applies
“less
pleadings drafted by lawyers.”
(2007).
stringent
standards
than
formal
Erickson v. Pardus, 551 U.S. 89, 94
Nevertheless, a pro se litigant’s “conclusory allegations
without supporting factual averments are insufficient to state a
claim upon which relief can be based.”
1106, 1110 (10th Cir. 1991).
Hall v. Bellmon, 935 F.2d
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).
To avoid dismissal, the
complaint’s “factual allegations must be enough to raise a right to
relief above the speculative level.”
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)(citation omitted).
Put another
way, there must be “enough facts to state a claim to relief that is
plausible on its face.”
Id. at 570.
The court accepts all
well-pleaded allegations in the complaint as true and considers them
in the light most favorable to the nonmovant.
469 F.3d 910, 913 (10th Cir. 2006).
Anderson v. Blake,
“[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.
The
complaint must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.”
555.
Id. at
Having screened all materials filed, the court finds the
complaint is subject to being dismissed for reasons that follow.
4
DISCUSSION
Civil rights claims based on arrest and continued seizure of
an arrestee are not actionable under the substantive due process
clause of the Fourteenth Amendment, because the Fourth Amendment
governs pretrial deprivations of liberty.
Mason v. Stock, 955
F.Supp. 1293, 1303, n. 8 (D.Kan. 1997)(citing Taylor v. Meacham, 82
F.3d 1556, 1560 (10th Cir. 1996)).
The Eight Amendment cruel and
unusual punishment clause does not apply to persons at the time of
their arrest, but to prison inmates.
the Fourth Amendment in two ways.
Plaintiff asserts claims under
First, he asserts that defendants
arrested him without probable cause.
1472, 1476 (10th Cir. 1995).
See Romero v. Fay, 45 F.3d
Second, he alleges that defendants used
excessive force at the time of his arrest.
a. Arrest without Probable Cause
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 police officer may arrest a person without a warrant
if he has probable cause to believe that person has committed a
crime.”
Tennessee v. Garner, 471 U.S. 1, 7 (1985); Devenpeck v.
Alford, 543 U.S. 146, 152 (2004)(“[A] warrantless arrest by a law
5
officer is reasonable under the Fourth Amendment where there is
probable cause to believe that a criminal offense has been or is being
committed.”); Mason, 955 F.Supp. at 1303.
“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.
U.S., 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”); Hunter v. Bryant, 502 U.S. 224,
228
(1991)(The
determination
must
be
made
“in
light
of
the
circumstances as they would have appeared to a prudent, cautious,
trained police officer.”); U.S. v. Maher, 919 F.2d 1482, 1485-86
(10th Cir. 1990).
An “exigent circumstances” exception may be
applied to a warrantless entry when the circumstances posed a
significant risk to the safety of a police officer or a third party.
U.S. v. Najar, 451 F.3d 710, 717 (10th Cir. 2006); West v. Keef, 479
F.3d 757, 759 (10th Cir. 2007)(“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.”).
In
addition, even where probable cause to arrest may be lacking,
qualified immunity in a § 1983 action is available to state actors
whose conduct was objectively reasonable in light of clearly
established law and all the factual circumstances.
Harlow v.
Fitzgerald, 457 U.S. 800, 818–19 (1982); Anderson v. Creighton, 483
6
U.S. 635, 638–41 (1987).
“Even law enforcement officials who
‘reasonably but mistakenly conclude that probable cause is present’
are entitled to immunity.”
omitted).
Hunter, 502 U.S. at 227 (citations
“[W]hen 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; see
Romero, 45 F.3d at 1476 n. 1, 1477(In a civil case pursuant to § 1983
the “burden rests on plaintiff” to allege sufficient facts showing
that defendants unreasonably arrested him without probable cause.);
Dauffenbach v. City of Wichita, 233 Kan. 1028, 1035, 667 P.2d 380
(Kan. 1983)(“[T]he excessiveness of the force employed is an element
of the claim that must be proven by the plaintiff, rather than a
defense of the officer to show the force used was not excessive.”).
Plaintiff’s allegation that the officers entered his motel room
without a warrant is accepted as true.
However, that he was arrested
without a warrant is not enough to state a plausible claim for relief
since his other allegations imply that the officers were responding
to a call regarding a safety issue.
In his complaint, plaintiff does
not reveal if he was taken before a judge for a probable cause
determination as would be the normal course.
He does not even reveal
that he was ultimately found guilty of numerous offenses that
occurred on the same day as his arrest.
The court takes judicial
notice of on-line Kansas Department of Corrections (KDOC) records
regarding offenders currently in its custody, and Mr. McCoy’s record
7
in particular.
That record indicates that Mr. McCoy was convicted
in Reno County District Court of numerous offenses that were
committed on the date he claims he was arrested without probable
cause,
March
22,
2011.
Those
offenses
include:
Kidnapping,
Aggravated Assault, Aggravated Endangering of a Child, four counts
of Aggravated Assault on a Law Enforcement Officer, and possession
of drugs.
Nor does Mr. McCoy reveal whether or not he appealed his
convictions on the claim of illegal arrest and discuss the result.
Either
plaintiff’s
arraignment
or
his
convictions
could
have
established the existence of probable cause for his arrest.
See
Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir. 1999);
Mason, 955 F.Supp. at 1307 (holding that municipal court conviction
established that there existed probable cause even though defendant
was found not guilty on appeal to the district court).2
Plaintiff’s
convictions, if arising from the incident of which he complains,
would preclude him from pursuing a § 1983 claim against the officers
for the act of placing him under arrest.
2
Plaintiff describes none
The following discussion is from Mason, 955 F.Supp. at 1307:
A federal court considering a § 1983 action must give preclusive effect
to a state court judgment to the same extent a court in that state
would. Hubbert v. City of Moore, Oklahoma, 923 F.2d 769, 772 (10th
Cir. 1991). Kansas follows the general rule that the conviction of
the accused by a magistrate or trial court, although reversed by an
appellate tribunal, conclusively establishes the existence of
probable cause unless the conviction was obtained by fraud, perjury
or other corrupt means. See Elbrader v. Blevins, 757 F.Supp. at 1177–
78 (citing Restatement (Second) of Torts § 667(1)(1977) and Kansas
law); see also Bussard v. Neil, 616 F.Supp. 854, 857 (M.D.Pa. 1985)
(holding prior traffic conviction conclusively establishes probable
cause regardless of reversal upon trial de novo).
8
of the circumstances that led to his arrest.
no cause existed is completely conclusory.
His allegation that
Courts “are not bound
to accept as true a legal conclusion couched as a factual allegation.”
See Papasan v. Allain, 478 U.S. 265, 286 (1986).
In addition, courts
may presume that the defendant law enforcement officers acted within
their authority unless facts are alleged indicating that they
arrested a person without probable cause.
51
Fed.Appx.
298,
301
(10th
Cir.
See Grauerholz v. Adcock,
2002)(unpublished)
3
(citing
Dauffenbach, 233 Kan. at 1034 (Kansas courts have presumed that
police officers “act[ ] fairly, reasonably and impartially in the
performance
of
their
duty.”).
If
there
existed
exigent
circumstances and therefore sufficient probable cause for officers
to seize plaintiff at the hotel on March 22, 2011, then his unlawful
arrest claim fails as a matter of law.
Furthermore, a claim for damages is not cognizable under § 1983
where a judgment in plaintiff’s favor would necessarily imply the
invalidity of his conviction or sentence, unless the prisoner can
show that the prior conviction had previously been invalidated.
Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
Consequently, when
a plaintiff files a civil rights action in a federal district court
after having been convicted, the “district court must consider
whether a judgment in favor of the plaintiff would necessarily imply
3
Unpublished opinions are not cited herein as binding precedent, but for
persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.
9
the invalidity of his conviction or sentence .”
Id. at 487.
In
Heck, the Supreme Court specifically found:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus.
Id. at 486–87; Muhammad v. Close, 540 U.S. 749, 751 (2004)(Where
success in a prisoner’s § 1983 damages action would implicitly
question the validity of his criminal conviction, “the litigant must
first achieve favorable termination of his available state, or
federal habeas, opportunities to challenge the underlying conviction
or sentence.”).
Success on a claim that Mr. McCoy was arrested
without probable cause could imply the invalidity of any conviction
that culminated from the arrest.
Plaintiff is given time to allege additional facts to state a
plausible claim that his arrest was without probable cause, even in
face of his convictions, and to show cause why this claim is not barred
by Heck.
If he fails to allege sufficient additional facts within
the time allotted, this action may be dismissed without further
notice.
b. Excessive Force
The United States Supreme Court has held that all excessive
10
force claims should be analyzed under the reasonableness standard
of the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 394 (1989).
“[F]ourth Amendment jurisprudence has long recognized that the right
to make an arrest . . . necessarily carries with it the right to use
some degree of physical coercion or threat thereof to affect it.”
Id. at 396; see e.g., Giese v. Wichita Police Dept., 69 F.3d 547,
*2 (10th Cir. 1995)(unpublished)(finding allegations that officers
ran after plaintiff, tackled him, and broke his arm during tackle
did not
show use of constitutionally excessive force).
reasonableness
dependent.
inquiry
is
an
objective
Graham, 490 U.S. at 394.
one
and
heavily
The
fact
Moreover, reasonableness of
the use of force is viewed from the perspective of a reasonable
officer on the scene and includes an allowance for the fact that
officers are forced to make split second judgments in tense,
uncertain, and rapidly changing situations.
Id.
“In analyzing
whether the police used excessive force, the court must determine
‘whether the officers’ actions were objectively reasonable in light
of the facts and circumstances surrounding them.’”
Swinehart v.
City of Ottawa, 24 Kan.App.2d 272, 943 P.2d 942, 946 (Kan.App.
1997)(citing Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516
(10th Cir. 1995); see Graham, 490 U.S. at 397)).
The factors to be
considered to determine reasonableness are the severity of the
crime(s) at issue, whether the subject posed an immediate threat to
the safety of the officer or others, and whether the subject was
11
resisting arrest.
Jiron v. City of Lakewood, 392 F.3d 410, 414-15
(10th Cir. 2004); Graham, 490 U.S. at 396; Franklin v. City of Kansas
City, 959 F.Supp. 1380 (D. Kan. 1997).
To state a viable excessive
force claim, the plaintiff must allege (1) that the officers used
greater force than would have been reasonably necessary to effect
a
lawful
seizure,
and
(2)
some
actual
injury
caused
by
the
unreasonable seizure that is not de minimis, be it physical or
emotional.
Cortez v. McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007).
The burden is on the plaintiff to “establish the use of excessive
force by an arresting officer” as an “element of his claim.”
Grauerholz, 51 Fed.Appx. at 301.
Plaintiff alleges facts plainly indicating that defendants used
physical force during his arrest.
Specifically, he alleges that he
was choked and beaten and rendered unconscious when he was not
resisting arrest.
Plaintiff has also submitted photographs of his
injuries (Doc. 5), which are either unclear or show only minor
abrasions and bruises.
Plaintiff’s allegation of “severe memory
loss and dementia” from “head and brain injuries” is conclusory, as
it not supported by any facts describing such serious symptoms or
any record of a physician’s diagnosis of such serious injuries.
He
claims that the force used was excessive in light of the circumstances
existing at the time of the arrest.
However, he describes no
circumstances of his arrest other than the physical force used
against him.
He does not describe any of his own actions before or
12
during the arrest.
not resist.
He merely makes the bald statement that he did
This statement is directly contrary to his convictions
of four counts of assaulting law enforcement officers.
If Mr. McCoy
attempted to flee or if he threatened and even assaulted officers,
as it appears, then the force alleged and exhibited by plaintiff could
have been objectively reasonable.
Plaintiff is given time to allege additional facts that he
eventually must prove with evidence at trial, that include not only
a description of the officers’ use of force during the arrest but
of his own behavior and other circumstances leading to and during
his arrest as well.
In other words, Mr. McCoy must allege enough
facts to state a plausible claim that the force used by defendant
officers was constitutionally excessive under all the circumstances.
Otherwise, plaintiff’s claim of excessive force may be dismissed for
failure to state sufficient facts to support a constitutional claim.
McGregor v. City of Olathe, KS, 158 F.Supp.2d 1225, 1235-37 (D.Kan.
2001), aff’d 30 Fed.Appx. 811 (10th Cir. 2002).
In addition, the court cannot discern from the complaint that
the invalidity of some of plaintiff’s state convictions would not
be implied by his claim that he was subjected to excessive force.4
4
The elements of aggravated assault of a law enforcement officer are now
defined in K.S.A. 21-5412.
“Assault is knowingly placing another person in
reasonable apprehension of immediate bodily harm. K.S.A. 21-5412(a). “Assault
of a law enforcement officer is assault, as defined in subsection (a), committed
against:
(1) A uniformed or properly identified state, county or city law
enforcement officer while such officer is engaged in the performance of such
officer’s duty . . . .”
K.S.A. 21-5412(c).
Aggravated assault of a law
13
As noted, he does not reveal that he was ultimately found guilty of
four counts of aggravated assault on a law enforcement officer.
Nor
does he reveal if he defended these charges by claiming excessive
force or any defense based on the same facts as those that underlie
his claims herein.
Mr. McCoy simply does not allege sufficient facts
regarding either his convictions or the circumstances of his arrest
to show that this court’s adjudication of the merits of his § 1983
excessive force claim would not call into question the lawfulness
of his state convictions.
If it would, then his excessive force
claim is barred by Heck unless and until these convictions are
overturned.
See Adams v. Dyer, 223 Fed.Appx. 757, 761 (10th Cir.
2007)(unpublished).
MOTION FOR APPOINTMENT OF COUNSEL
The court has considered plaintiff’s Motion for Counsel (Doc.
6) and finds it should be denied at this juncture.
There is no
constitutional right to appointment of counsel in a civil case.
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. Deland,
54 F.3d 613, 616 (10th Cir. 1995).
The decision whether to appoint
counsel in a civil matter lies in the discretion of the district
court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
The
burden is on the applicant to convince the court that there is
enforcement officer is assault of a law enforcement officer, as defined in
subsection (c), committed (1) With a deadly weapon; (2) while disguised in any
manner designed to conceal identity; or (3) with intent to commit any felony.”
K.S.A. 21-5412(d).
14
sufficient merit to his claim to warrant the appointment of counsel.
Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006)(citing Hill
v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).
In deciding whether to appoint counsel, the district court should
consider “the merits of the prisoner’s claims, the nature and
complexity of the factual and legal issues, and the prisoner’s
ability to investigate the facts and present his claims.”
Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995); Hill, 393 F.3d at
1115.
Having considered the above factors, the court concludes in
this case that (1) it is not clear at this juncture that plaintiff
has asserted a colorable claim; (2) the issues are not overly complex;
and (3) plaintiff appears capable of adequately presenting facts and
arguments.
Because no special legal training is required to recount
the facts surrounding an alleged injury, pro se litigants may be
expected to state such facts without any legal assistance.
935 F.2d at 1109.
See Hall,
It is not enough “that having counsel appointed
would have assisted [the prisoner] in presenting his strongest
possible case, [as] the same could be said in any case.”
461 F.3d at 1223 (citing Rucks, 57 F.3d at 979).
Steffey,
Nor is it enough
that plaintiff is limited by his confinement, as could likewise be
said
in
any
prisoner
case.
Accordingly,
the
Court
denies
plaintiff’s motion for appointed counsel, without prejudice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion
to Proceed without Prepayment of Fees (Doc. 2) is granted based upon
15
the incomplete information presented and subject to alteration upon
the receipt of contrary evidence.
IT IS FURTHER ORDERED that plaintiff is hereby assessed the full
filing fee for this action of $350.00, and that the finance officer
of the facility in which plaintiff is currently confined is directed
to collect from plaintiff’s inmate account and pay to the clerk of
this court twenty percent (20%) of the prior month’s income each time
the amount in plaintiff’s account exceeds ten dollars ($10.00) until
plaintiff’s outstanding filing fee obligation has been paid in full.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30) days
in which to show cause why this action should not be dismissed for
failure to allege sufficient facts to support his claims of illegal
arrest and excessive force, particularly in light of his convictions
in Case No. 11 CR 178 (Dist.Ct. Reno County, Kansas, Feb. 24, 2012),
and as barred by Heck.
IT IS FURTHER ORDERED that plaintiff’s Motion for Counsel (Doc.
6) is denied, without prejudice.
The clerk is directed to send a copy of this order to the finance
office at the institution in which plaintiff is currently confined.
IT IS SO ORDERED.
Dated this 16th day of October, 2012, at Topeka, Kansas.
16
s/Sam A. Crow
U. S. Senior District Judge
17
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