Lovette v. Bowen et al

Filing 9

MEMORANDUM OPINION AND ORDER signed by Senior Judge Charles R. Simpson, III on 9/29/2016. Plaintiff's official-capacity claims are DISMISSED for failure to state a claim upon which relief may be granted. Within thirty (30) days from the entry of this Order, Plaintiff may file an Amended Complaint. The Clerk of Court is DIRECTED to send Plaintiff a 1983 Complaint form. cc: Plaintiff, pro se, Defendants, Bullitt Co. Atty., Mt. Washington City Atty. (RLK) Modified on 9/29/2016: cc (RLK).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
STEVEN LOVETTE

PLAINTIFF

v.

CIVIL ACTION NO. 3:16-CV-P258-CRS

NEIL BOWEN et al.

DEFENDANTS
MEMORANDUM OPINION AND ORDER

This is a civil rights action brought by a convicted prisoner pursuant to 42 U.S.C.
§ 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. This matter is
before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 594 U.S. 199 (2007).
For the reasons set forth below, the action will be dismissed in part and Plaintiff will be allowed
to amend his complaint.
I. SUMMARY OF COMPLAINT
Plaintiff Steven Lovette brings this 42 U.S.C. § 1983 action against Defendants Bullitt
County Sheriffs Neil Bowen, Dan Miller, M. Riley; Mount Washington Police Officers T.
Morris and T. Mattingly; and “other unnamed police in video” employed by “Bullitt County law
enforcement.” Plaintiff indicates that he is suing four of the five named Defendants in both their
official and individual capacities. Plaintiff neglects to check either box for the remaining
Defendant, so the Court interprets this as an oversight and will consider claims against that
Defendant as brought in both capacities as well. Thus, the Court concludes that Plaintiff
intended to sue each individual Defendant in both his official and individual capacities.
In his complaint, Plaintiff alleges as follows:
I was involved in a pursuit by police and was forced to stop by force and plainly
did not resist arrest and was choked unconscious and then beat have video (body
camera) to prove it Excessive Force was used time and time again as well as

deadly force was attempted with their vehicles My constitutional right were
violated I had so many attacking me when I was say I give up It is clearly in
video.
As relief, Plaintiff seeks compensatory damages in the amount of “$ 5.27 million” and
punitive damages in the amount of “$ 2.75 million.”
II. LEGAL STANDARD
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under
§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of
the complaint, if the court determines that it 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 § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d at 608.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a
claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “[A] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89

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(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, while liberal, this
standard of review does require more than the bare assertion of legal conclusions. See Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
III. ANALYSIS
Section 1983 creates no substantive rights but merely provides remedies for deprivations
of rights established elsewhere. Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th
Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S.
635, 640 (1980). “A plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “Absent either element,
a § 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
A claim for use of excessive force effectuated upon arrest is analyzed under the Fourth
Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989). The proper application of this
standard “requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or attempting to evade

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arrest by flight.” Id. at 396; see also Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 (6th
Cir. 2006). “These factors are not an exhaustive list, as the ultimate inquiry is whether the
totality of the circumstances justifies a particular sort of seizure.” Baker, 471 F.3d at 606-07.
A. OFFICIAL-CAPACITY CLAIMS
To the extent that Plaintiff sues Defendants in their official capacities, “[o]fficial-capacity
suits . . . ‘generally represent [] another way of pleading an action against an entity of which an
officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). Thus, the claims brought against
Defendants Bullitt County Sheriffs Neil Bowen, Dan Miller, and M. Riley in their official
capacities are deemed claims against Bullitt County. Similarly, the claims brought against
Defendants Mount Washington Police Officers T. Morris and T. Mattingly in their official
capacities are deemed claims against the City of Mount Washington. See, e.g., Lambert v.
Hartman, 517 F.3d 433, 440 (6th Cir. 2008) (stating that civil rights suit against county clerk of
courts in his official capacity was equivalent of suing clerk’s employer, the county).
When a § 1983 claim is made against a municipality, this Court must analyze two distinct
issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so,
whether the municipality is responsible for that violation. Collins v. City of Harker Heights,
Tex., 503 U.S. 115, 120 (1992). The municipality is only liable when an official policy or
custom of the corporation causes the alleged deprivation of federal rights. Because Plaintiff has
not alleged that his constitutional rights were violated pursuant to a policy or custom of Bullitt
County or the City of Mount Washington, the Court will dismiss Plaintiff’s official-capacity
claims for failure to state a claim upon which relief may be granted.

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B. INDIVIDUAL-CAPACITY CLAIMS
A plaintiff bringing an individual-capacity claim under § 1983 “seek[s] to impose
individual liability upon a government officer for actions taken under color of state law.” Hafer
v. Melo, 502 U.S. 21, 25 (1991). To sufficiently plead a § 1983 claim against a Defendant in
his/her individual capacity, a plaintiff must allege Defendant’s “personal involvement” in the
alleged constitutional violation. Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991)
(explaining liability “must be based on the actions of that defendant in the situation that the
defendant faced, and not based on any problems caused by the errors of others”); see
also Murphy v. Grenier, 406 F. App’x 972, 974 (6th Cir. 2011).
Here, Plaintiff has sued the five named individual Defendants and “another unnamed
police” Defendant in their individual-capacities. However, he has failed to describe the actions
of each Defendant - specifically, how each Defendant was personally involved in the alleged
incident of excessive force. Thus, as written, Plaintiff’s complaint fails to state individualcapacity claims against any Defendant upon which relief may be granted. The Court, however,
will allow Plaintiff to amend his complaint to provide these necessary details. See LaFountain v.
Harry, 716 F.3d 944 (6th Cir. 2013) (a district court may allow a prisoner to amend a complaint
to avoid sua sponte dismissal under the Prison Litigation Reform Act).
Additionally, because what crimes Plaintiff was convicted of following his arrest may
bear on the outcome of this case, the Court will also order Plaintiff to provide that information as
well.

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IV. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s official-capacity
claims are DISMISSED pursuant 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon
which relief may be granted.
IT IS FURTHER ORDERED that within 30 days from the entry date of this Order,
Plaintiff may file an amended complaint. Should Plaintiff decide to file an amended
complaint, he should specifically describe how each Defendant was personally involved in
the alleged incident of excessive force against him. Plaintiff shall also state in his amended
complaint what crime(s) he was convicted of following his arrest.
Should Plaintiff fail to file an amended complaint with the above information within
the allotted amount of time, Plaintiff’s individual-capacity claims will also be dismissed
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be
granted.
The Clerk of Court is DIRECTED to send Plaintiff a § 1983 complaint form with this
case number and the word “Amended” affixed thereto so that Plaintiff can include the additional
allegations set forth above.
Date:

September 29, 2016

C al R Smpo I , ei J d e
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cc:

Plaintiff, pro se
Defendants
Bullitt County Attorney
Mt. Washington City Attorney
4411.011

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