Calloway v. Beasley et al

Filing 20

MEMORANDUM AND ORDER granting in part and denying in part 17 Motion to Amend/Correct. The Court will allow Plaintiff's false arrest claim to proceed against Defendants Officers Beasley, Kelsey, Soto-Perez, and Reeves in their individual capacities and against Defendant Louisville Metro Government. The motion is denied with respect to all other claims. Signed by Senior Judge Charles R. Simpson III. cc:Plaintiff, pro se; Counsel of record (ERH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

KIM V. CALLOWAY

PLAINTIFF

v.

CIVIL ACTION NO. 3:13CR-410-S

RODERICK BEASLEY et al.

DEFENDANTS

MEMORANDUM AND ORDER
Plaintiff Kim V. Calloway filed this pro se action proceeding in forma pauperis. This
matter is before the Court on Plaintiff’s motion to clarify and amend (DN 17).
I.
Upon initial review of the action pursuant to 28 U.S.C. 1915(e)1 and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 548
U.S. 199 (2007), the Court allowed Plaintiff’s claim alleging an illegal search to continue against
Louisville Metro Police Department (LMPD) Officers Roderick Beasley, Steve Kelsey, Jorge
Soto-Perez, and Clayton Reeves in their individual capacities. The Court dismissed Plaintiff’s
official-capacity claims against the officers finding that Plaintiff had failed to allege that the
officers acted pursuant to a municipal policy or custom in causing the alleged harm.
However, Plaintiff then moved to amend the complaint to add allegations that Defendants
acted pursuant to a municipal policy. The Court granted the motion and allowed Plaintiff to add
the Louisville Metro Government as a Defendant. In his previous motion, Plaintiff also made
reference to an “illegal arrest” and “illegal incarceration.” Finding that Plaintiff had stated in the

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At the time he filed his complaint, Plaintiff stated that he was on probation. He was not
incarcerated. However, because he is proceeding in forma pauperis, his claims are subject to
initial screening under 28 U.S.C. § 1915(e). The standard for initial screening under § 1915(e)
and § 1915A is the same.

original complaint that he had pleaded guilty to the charges, the Court did not allow Plaintiff to
add a false arrest claim. In addition, Plaintiff described a separate incident when a “complaining
witness” kicked in his front and back doors. The Court could not discern Plaintiff’s intent in
describing the separate incident since he did not identify any specific Defendants whom he
alleged were responsible for any alleged harm.
II.
False arrest claim
Plaintiff has now filed the instant motion to clarify and amend (DN 17) wherein he again
attempts to clarify his claims. First, he states that the Court “erroneously found the Plaintiff had
pleaded guilty to the original charge of Assault 4 which Plaintiff was arrested and incarcerated
for.” He states that the Assault 4 charge was dismissed and that he “was compelled to plead
guilty on contempt of court where Plaintiff by the consent of counsel brought the alleged victim
to court as Plaintiffs material witness to testify that no assault had occurred and, to testify that
she did not live at Plaintiffs residents. Apparently, contempt was charged to Plaintiff for
violation of a no contact order.”
Because Plaintiff is proceeding in forma pauperis, any claims he seeks to add must be
reviewed under 28 U.S.C. § 1915(e), which requires that the Court must determine whether
Plaintiff’s proposed claims would survive initial review. Under § 1915(e), the trial court must
review the claims and dismiss any claim that it determines 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. See § 1915(e)(1)(2)(B).
The Court construes Plaintiff’s allegations as alleging a false arrest claim in connection
with his arrest for Assault 4 against Defendants Officers Beasley, Kelsey, Soto-Perez, and
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Reeves. Plaintiff having clarified that he was arrested on a charge of Assault 4 and that he did
not plead guilty to Assault, the Court will allow his false arrest claim to proceed against these
Defendants in their individual capacities. As Plaintiff alleged in his previous motion to amend
that the officers were acting pursuant to LMPD policy, the Court will also allow the false arrest
claim to proceed against Defendant Louisville Metro Government.
Claim concerning separate incident
Plaintiff again attempts in the instant motion to describe a separate incident which
occurred after he filed his complaint. Plaintiff states that on October 25, 2013, the alleged victim
in the above incident that led to his assault charge called and informed him that she was coming
over to his house. Plaintiff responded that he was sick and “did not want her company at that
time.” According to Plaintiff, “[h]er response to this was … []I am coming over anyway and, if I
find out there is any other woman in your company, I am going to kick your door in and, harm
you and the woman.” (Ellipses used by Plaintiff.) Plaintiff reports that he felt the need to protect
himself and called his neighbor, ex-wife, and son and told his neighbor to call the police if he
saw the woman outside Plaintiff’s house. He represents that he believed “if I called the police
the police would do nothing to protect me and, I would probably be locked up.”
Plaintiff states that the woman came over and he refused to let her in the door. He called
the police “after she started kicking on my back door.” He states that “it seemed like an eternity
had passed while she ran to the front and back door’s kicking and hitting on the doors with a
make shift hatched that was on the back porch.” He states that the police requested entry to his
home but that he refused to let them in “because of fear of them, and because they were not at all
concerned about the woman destroying my house. She had kicked in the front door completely
by now.” Plaintiff states that his son “was explaining the situation to police without opening the
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door because Plaintiff had blocked the front door with 2 by 4 wood.” Plaintiff reports that the
police questioned the woman and “let her go on her promise she would go home.” However,
when the police left, the woman returned and “continued her assaulted on my house.” He again
called police and this time the woman was arrested but they did not give Plaintiff a report and
“did not obtain the weapon nor did they seem at all concerned that I had called the police for my
protection.”
Plaintiff further states that he let the police in his home and he was told that “[i]f Plaintiff
had not them in (police) they would have kicked my door and arrested Plaintiff.” He maintains
that he had done nothing wrong. He states, “This is when a young police officer informed me
that under police policy even though I had done nothing…my front door would have been kicked
in by police because I would not let them in arrested and taken to jail.” (Ellipses used by
Plaintiff.)
Plaintiff contends that he has been denied equal protection and due process under the
Fourteenth Amendment. He states that the woman who damaged his home “was not even
arrested the first time police came to my home after being called. If she had been arrested at
first, I would not been put in fear of my life for a second time nor, would have my home suffered
more severe damage.” He states that, even though the police report said that a hammer was used
to deface his house, the police did not confiscate the hammer for evidence.
Plaintiff further reports that he missed the last court date in the criminal matter against
the woman due to a flat tire and that he received paperwork that the case was dismissed “when I
have always expressed to the courts prosecuting agent that I wanted to press charges and
specifically be paid for damages to my home.” He states that the woman “was set free in face of

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a revocation proceeding.” He represents that he is trying to have the charges reinstated in order
to receive compensation for the damage to his home.
Plaintiff states that he “feels there are some dubious dealings going on with [LMPD]
members to deprive Plaintiff of his Constitutional Rights” and that he is in fear for his life. He
states that Officer M. Mclaurine is the only police officer named in the report but there were at
least three other officers that came to his home.
The Court construes the allegations as seeking to supplement the complaint with equal
protection and due process claims against Officer Mclaurine and three unnamed officers for their
failure to arrest the woman who damaged Plaintiff’s home. It is clear from the allegations that
Plaintiff himself was not arrested in connection with the October 25, 2013, incident. The Court
must review the allegations under § 1915(e) to determine whether they survive initial screening.
As a private citizen, Plaintiff does not have a constitutional right to initiate or compel the
initiation of criminal proceedings against another individual. See Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.”); McCrary v. Cnty. of
Nassau, 493 F. Supp. 2d 581, 588 (E.D.N.Y. 2007) (“A private citizen does not have a
constitutional right to compel government officials to arrest or prosecute another person.”);
Osuch v. Gregory, 303 F. Supp. 2d 189, 194 (D. Conn. 2004) (“An alleged victim of a crime
does not have a right to have the alleged perpetrator investigated or criminally prosecuted.”);
White v. City of Toledo, 217 F. Supp. 2d 838, 841 (N.D. Ohio 2002). Therefore, Plaintiff cannot
state a constitutional violation under 42 U.S.C. § 1983 for any party’s failure to arrest or delay in
the arrest of the woman who damaged his home. Nor can he state a claim related to the dismissal
of the charges against her.
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Moreover, an equal protection claim fails. The Fourteenth Amendment’s Equal
Protection Clause “is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982)). “In order to state an equal protection claim, a plaintiff must allege
that a state actor intentionally discriminated against him because of his membership in a
protected class or that the state infringed upon a fundamental right.” Coleman v. Martin, 363 F.
Supp. 2d 894, 902 (E.D. Mich. 2005) (citing Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th
Cir. 1990)). Plaintiff does not allege that any of the alleged conduct was motivated by his race or
any other characteristic that would implicate an equal protection violation. Nor can he establish
that the state infringed on a fundamental right because, as stated, an individual does not possess a
constitutional right in the arrest or prosecution of another. See Linda R.S. v. Richard D., 410
U.S. at 619.
III.
Based on the foregoing, IT IS ORDERED that the motion to clarify and amend (DN 17)
is GRANTED in part and DENIED in part. The Court will allow Plaintiff’s false arrest claim
to proceed against Defendants Officers Beasley, Kelsey, Soto-Perez, and Reeves in their
individual capacities and against Defendant Louisville Metro Government. The motion is denied
with respect to all other claims.
To clarify the claims now before the Court, the Court has allowed Plaintiff’s claims of
illegal search and false arrest to proceed against Defendants Beasley, Kelsey, Soto-Perez, and
Reeves in their individual capacities and against Defendant Louisville Metro Government.

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Defendants shall file an answer to the false arrest claim in accordance with the
Federal Rules of Civil Procedure.
Date:

May 23, 2014

C al R Smpo I , ei J d e
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Plaintiff, pro se
Counsel of record
4411.010

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