Wischer v. Ludlow Police Department et al

Filing 19

MEMORANDUM OPINION & ORDER:1. Plaintiff Christopher Wischers Motion to Suspend his sentence 13 is DENIED; 2. Wischers Motion to appoint counsel 15 is DENIED; 3. Wischers Complaint (Doc. # 1) is DISMISSED WITHOUT PREJUDICE; 4. A Judgment shall be entered contemporaneously herewith; and 5. This matter is STRICKEN from the Courts active docket. Signed by Judge David L. Bunning on 08/29/2017.(KRB)cc: COR,Christopher Wischer via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 16-192-DLB
CHRISTOPHER WISCHER
vs.

PLAINTIFF
MEMORANDUM OPINION
AND ORDER

LUDLOW POLICE DEPARTMENT, et al.

DEFENDANTS

*** *** *** ***
Christopher Wischer is an inmate confined at the Kentucky State Reformatory.
Proceeding without an attorney, Wischer has filed a civil rights complaint pursuant to 42
U.S.C. § 1983. (Doc. # 1).
The Court must conduct a preliminary review of Wischer’s Complaint because he
has been granted permission to pay the filing fee in installments (Doc. # 9) and because
he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A
district court must dismiss any claim that is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Wischer’s Complaint, the Court affords it a forgiving construction,
accepting as true all non-conclusory factual allegations and liberally construing its legal
claims in the plaintiff’s favor. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th
Cir. 2012).

1

Wischer alleges that on May 20, 2012, officers Eastham and Hager of the Ludlow
Police Department were circling around the block of residential homes based upon a call
to the police station that a woman had been seen vomiting outside a home. They were
approached by several young men who told them that a woman was being taken
advantage inside a home at 272 Stonesay. Wischer contends that Eastham and Hager
entered the home without probable cause. Once inside, they found Wischer, as well as
an intermittently conscious woman whom they suspected was suffering from alcohol
poisoning. Paramedics arrived and transported the woman for emergency medical care.
Wischer contends that his person and the home were then searched without his
permission, and evidence seized in violation of the Fourth Amendment. (Doc. # 1 at 24).
Wischer indicates that he was later charged with first-degree rape, but was
released on a $5,000.00 bond pending trial. Wischer’s 57-page Complaint sets forth at
great length alleged insufficiencies and improprieties arising from the police investigation
into the events of that night, as well as pretrial court proceedings and his sentencing. Id.
at 5-11. Wischer’s rambling complaint vaguely contends that the criminal prosecution
was conducted in violation of his due process and equal protection rights, was based
upon unreliable testimony and physical evidence, was based upon evidence obtained in
violation of the Fourth Amendment, and that his guilty plea was not knowing and
voluntary. Id. at 12-49. Wischer separately contends in a single page that the Ludlow
Police violated his Eighth Amendment rights in various respects, including the use of
excessive force. Id. at 31.

2

Wischer has named as defendants the Ludlow Police Department and Officers
Love, Eastham, Hager and Powell. Wischer does not request that this Court invalidate
his conviction; instead, he asks this Court to “plea with State Court for his dismissal.” Id.
at 53. He also requests that the Ludlow Police Department be ordered to publicly
announce that his trial was unfair, and asks for “just compensation” in the amount of
$1,000.00 per day of incarceration under the takings clause of the Fifth Amendment. Id.
at 50, 55.
The Kentucky Court of Justice’s online website1 indicates that on January 18,
2013, Wischer pled guilty to one count of violating Ky. Rev. Stat. 510.050 for seconddegree rape by rendering the subject incapacitated through the use of an intoxicating
substance. That offense is a Class C felony. The Circuit Court of Kenton County,
Kentucky sentenced him to 8 years imprisonment.

In 2014, the trial court denied

Wischer’s Motion for shock probation, and in 2016, denied his Motion to Vacate his
conviction and sentence pursuant to RCr 11.42. Comm. v. Wischer, No. 12-CR-00528
(Cir. Ct. Kenton Co. 2012).2
After he filed his Complaint in this action, Wischer filed two motions for relief. In
the first, Wischer requests that the Court “suspend” the sentence imposed by the Kenton
Circuit Court. (Doc. # 13). The only authority cited by the plaintiff is Ky. Rev. Stat.

See https://kcoj.kycourts.net/CourtNet/Search/CaseAtAGlance?county=059&court=1&
division=CI&caseNumber=12-CR-00528&caseTypeCode =CR&client_id=0 (last visited on
August 29, 2017).

1

In 2013, Wischer filed a habeas corpus petition pursuant to 28 U.S.C. § 2254, which was
denied as premature because several of his claims remained pending before the trial court and
hence were unexhausted. Wischer v. Western District, No. 2:13-CV-182-JMH-JGW (E.D. Ky.
2013).
2

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439.265, which authorizes the circuit court that imposed the sentence to grant “shock”
probation. As a matter of federal law, if Wischer seeks an earlier or immediate release
from physical custody, his only remedy is to seek a writ of habeas corpus; he may not
use a civil action to directly or indirectly undermine or impugn the validity of his criminal
conviction. A habeas corpus proceeding is the only mechanism available for him to do
so. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973).
In addition, Ky. Rev. Stat. 439.265 permits Wischer to seek shock probation only
from the court that imposed his sentence—Kenton Circuit Court. Finally, Ky. Rev. Stat.
439.265(4) prohibits granting shock probation where “the defendant is a violent offender
as defined in KRS 439.3401.” That section specifically includes “any person who has
been convicted of or pled guilty to the commission of ... (e) The commission or attempted
commission of a felony sexual offense described in KRS Chapter 510.” Ky. Rev. Stat.
439.3401(1)(e).

Wischer’s conviction under Ky. Rev. Stat. 510.050 renders him

categorically ineligible for shock probation. This Motion will therefore be denied on both
procedural and substantive grounds.
Wischer also filed a motion to appoint counsel to represent him in these
proceedings pursuant to 18 U.S.C. § 3006A. (Doc. # 15). However, § 3006A authorizes
the appointment of counsel in federal criminal or habeas corpus proceedings; this civil
action constitutes neither.

A federal court may be permitted to appoint counsel to

represent a pro se party in civil litigation, but only in truly exceptional circumstances.
Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); 28 U.S.C. § 1915(e)(1). When
considering whether to grant such a request, the court considers the complexity of the
case, the movant’s likelihood of success on the merits of the claim, and the ability of the
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plaintiff to represent himself competently. Cleary v. Mukaskey, 307 F. App’x 963, 965
(6th Cir. 2009). In this case, the claims asserted by Wischer are not unduly complex and,
as explained below, present no likelihood of success on the merits in this proceeding.
The Court has considered the Lanier factors and concludes that this case does not
present the kind of extraordinary circumstances which would warrant the appointment of
counsel for the plaintiff, and the Court will deny the motion.
Finally, having conducted the screening required by 28 U.S.C. §§ 1915(e)(2),
1915A, it is plain that Wischer’s Complaint must be dismissed. As previously noted,
Wischer’s request for relief from his criminal sentence is not properly before this Court in
a civil rights proceeding. Preiser, 411 U.S. at 490; Wilkinson v. Dotson, 544 U.S. 74, 78
(2005) (“[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or
duration of his confinement.’”).
Nor may Wischer seek damages in a civil rights proceeding based upon actions
which he contends violated his constitutional rights during the course of criminal
proceedings against him.

“[W]hen establishing the basis for the damages claim

necessarily demonstrates the invalidity of the conviction ... the claimant can be said to be
‘attacking ... the fact or length of ... confinement.’” Heck v. Humphrey, 512 U.S. 477, 481
(1994).

Here, Wischer squarely challenges the constitutional validity of the police

investigation and criminal prosecution against him.

Therefore, he may not pursue

damages in a civil rights case before he has obtained relief from his conviction, something
he has thus far failed to do. See id. at 486-87 (“[I]n 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
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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, 28 U.S.C. § 2254.”). Wischer’s claim is therefore premature unless and until he
obtains such relief, and will be dismissed without prejudice.
Finally, Wischer makes a passing complaint that the Ludlow Police Department
violated his Eighth Amendment rights through his treatment during incarceration. (Doc.
# 1 at 31). To the extent that claim is based upon his brief detention in 2012 before he
was released on bond, any such claim has long been barred by the one-year statute of
limitations. Ky. Rev. Stat. § 413.140(1)(a); Hornback v. Lexington-Fayette Urban Co.
Gov’t., 543 F. App’x 499, 501 (6th Cir. 2013); Mitchell v. Chapman, 343 F.3d 811, 825
(6th Cir. 2003). Since 2013, Wischer has been confined at the state prison in LaGrange,
Kentucky, see Wischer v. Western District, No. 2:13-CV-182-JMH-JGW (E.D. Ky. 2013)
(Doc. # 1 therein), and he makes no allegations of mistreatment there. Accordingly,
IT IS ORDERED as follows:
1.

Plaintiff Christopher Wischer’s Motion to Suspend his sentence (Doc. # 13)

is DENIED;
2.

Wischer’s Motion to appoint counsel (Doc. # 15) is DENIED;

3.

Wischer’s Complaint (Doc. # 1) is DISMISSED WITHOUT PREJUDICE;

4.

A Judgment shall be entered contemporaneously herewith; and

5.

This matter is STRICKEN from the Court’s active docket.

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This 29th day of August, 2017.

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