Quinn v. Central Intelligence Agency et al

Filing 6

MEMORANDUM AND OPINION by Chief Judge Joseph H. McKinley, Jr on 2/15/13; The Court will dismiss the complaint by separate order. cc:Plaintiff (pro se), Defendants (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
GEORGE KEVIN QUINN

PLAINTIFF

v.

CIVIL ACTION NO. 4:12CV-P135-M

CENTRAL INTELLIGENCE AGENCY et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, George Kevin Quinn, filed a pro se, in forma pauperis complaint pursuant to 42
U.S.C. § 1983. 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). For the reasons set forth below, the
action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff is incarcerated at the Daviess County Detention Center (DCDC). He sues the
Central Intelligence Agency; FBI; Kentucky State Police; Owensboro Police Department;
“DCSD”; Judges Lisa Jones, David Payne, Tyler Gills, and Henry “Mac” Griffin; bailiff Kenny
Riley; prosecutors Bruce Kuegal and Mike Vanmeter; “FBI agent”; court clerk Susan Tierney;
Pastor of World Changers Ministry “Crefld Dollar”; Fr. Vaughn at Saint Stephen’s Church; Saint
Benedict’s Homeless Shelter; DCDC Jailer David Osborne; Public Advocacy Department
defense attorney Alex Degrand; Hells Angels; and DCDC guards Bill Billings and Ken Ehlscide.
Plaintiff’s complaint is lengthy, rambling and often incoherent. He refers to himself as
having been kidnapped apparently because he was not released from custody after 60 days or
after Judge Gills found that Plaintiff had violated his probation. He accuses his attorney
Defendant Degrand of working for the prosecution and continuing to represent him even after
Plaintiff fired him and of being ineffective in not collecting evidence. He accuses Defendant

Osborne of assaulting and kidnapping him “when I told him he ran the jail like a concentration
camp” and of “torturing” him by keeping him on lockdown 23 hours a day. He states that the
Jail does not “attend” to medical treatment and that it stole $267 by not applying that money
towards his bond. He asserts “corruption is rampant in Daviess County. Majority of officials are
worse then child molesters. Please enter martial law!” He accuses Judge Jones, Bailiff Riley,
and Deputy Lowe of falsifying a police report. He alleges that, when Plaintiff told the court he
was going to run for jailer, Judge David Payne restricted his freedom of speech in court, set an
excessive bond, and called him a racist. He asserts that Daviess County bailiffs have run him out
of the judicial center where Plaintiff was not allowed to use the law library or sit in on the court
hearings of his friends. He asserts that Deputy Carl Brown assaulted him and physically
removed him from Judge Jones’s courtroom.
Plaintiff expresses anger at a revival minister, Mr. Dollar, who did not call President
Obama on his behalf regarding his son’s kidnapping and against the Hell’s Angels for not
helping him to free his son. He alleges that, while housed at the Saint Benedict’s homeless
shelter, a supervisor named Tammy told him to go inside while he was outside making a sign
regarding his son’s kidnapping “and nodded to one of the residents who started picking up [his]
equipment.” Plaintiff asserts that about half-an-hour after Plaintiff told the other resident that “if
he ever touched [Plaintiff] or [his] property ever again [Plaintiff] would take him down the alley
and teach him some manners” the police came and told Plaintiff he had to leave.
Plaintiff also attaches a list of things he says that his son has been deprived of by the
United States, such as guitar lessons, piano lessons, and art class. The next page is entitled
“Quinn’s Ten Commandments” and contains bizarre requests such as releasing Charles Manson

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into his custody and giving Plaintiff the right to grow corn on the moon. The complaint
continues for some pages making completely incomprehensible arguments related to the Bible,
the extinction of the dinosaurs, and various other topics.
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,
officer, or employee, the trial court must review the complaint and dismiss the action, 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 28
U.S.C. §§ 1915A(b)(1) and (2). 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 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. When determining whether a plaintiff
has stated a claim upon which relief can be granted, the Court must construe the complaint in a
light most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Claims related to his on-going state-court criminal case
To the extent that Plaintiff is asserting complaints about an on-going state criminal case,
“a federal court should not interfere with a pending state criminal proceeding except in the rare
situation where an injunction is necessary to prevent great and immediate irreparable injury.”

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Fieger v. Thomas, 74 F.3d 740, 743 (6th Cir. 1996) (citing Younger v. Harris, 401 U.S. 37
(1971)). “Younger abstention in civil cases requires the satisfaction of three elements. Federal
courts should abstain when (1) state proceedings are pending; (2) the state proceedings involve
an important state interest; and (3) the state proceedings will afford the plaintiff an adequate
opportunity to raise his constitutional claims.” Hayse v. Wethington, 110 F.3d 18, 20 (6th Cir.
1997).
It appears that Plaintiff has a pending criminal case, over which the state has an important
interest in adjudicating. In light of the available avenues through which to raise a constitutional
challenge, this Court will not interfere with an on-going Kentucky state-court proceeding.
Therefore, all claims related to his state-court criminal case including his claims against the court
clerk and the prosecutors will be dismissed.
Claims against FBI, OPD, Kentucky State Police, and D.C.S.D.
Plaintiff alleges that in 2012,
F.B.I., O.P.D., K.S.P., and D.C.S.D. were guilty of refusing to
investigate crimes of abusing a mentally ill person one or more times
in the Plaintiff’s defense as being kidnapped, son being kidnapped,
Plaintiff’s daughter’s car being stole by Antonio Divayi and Morton
Holbrook Judicial workers, abuse of Daviess County baliffs, judges,
and assault by Daviess County Jailer and ineffective counsel by
Department of Public Advocacy.
“The failure to conduct a full and fair investigation and prosecution of an alleged crime does not
state a claim unless there is a violation of another recognized constitutional right.” Smallwood v.
McDonald, No. 86-5522, 1986 WL 18183, at *1 (6th Cir. 1986) (citing Gomez v. Whitney, 757
F.2d 1005, 1006 (9th Cir. 1985) (per curiam)). Plaintiff does not so allege, and the claims
against these Defendants must be dismissed.

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Claims against his defense attorney
Plaintiff does not state a claim against his attorney, Defendant Degrand, under 42 U.S.C.
§ 1983, the statutory provision under which alleged constitutional violations must be brought.
See Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir. 1987) (holding that § 1983 provides the
exclusive remedy for constitutional claims brought against state and local officials and local units
of government), vacated on other grounds, 488 U.S. 1036 (1989). It is firmly established that a

defense attorney, regardless of whether he is a public defender or private attorney, is not a state
actor for purposes of § 1983. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public
defender does not act under color of state law when performing a lawyer’s traditional functions
as counsel to a defendant in a criminal proceeding.”); Otworth v. Vanderploeg, 61 F. App’x 163,
165 (6th Cir. 2003) (“[A] lawyer representing a client is not, by virtue of being an officer of the
court, a state actor under color of state law within the meaning of § 1983.”). Thus, Plaintiff fails
to state a claim against this Defendant.
Claims against judges
Plaintiff sues state-court judges Jones, Payne, Gills, and Griffin. However, a judge
performing judicial functions is absolutely immune from suit seeking monetary damages.
Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam). Judicial immunity is available even if
the judge acts maliciously, corruptly, or in bad faith. Id. at 11. Because Plaintiff complains only
about conduct that comprises the very core of a judge’s official duties, the Court concludes that
absolute judicial immunity bars the claims for monetary damages against these Defendants. See
id. at 9.
Plaintiff also sues these judges in their official capacity. The official-capacity claims

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brought against a state-court judge are deemed claims against the Commonwealth of Kentucky
itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). To state a § 1983 claim, a plaintiff
must allege that a “person” acting under color of state law deprived the plaintiff of a right
secured by the Constitution or federal law. See § 1983. States, state agencies, and state officials
sued in their official capacities for money damages are not “persons” subject to suit under
§ 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, Plaintiff’s claims for
money damages from a state-court judge in his or her official capacity fail to allege cognizable
claims under § 1983.
Claim related to lockdown
Plaintiff alleges that Defendant Osborne assaulted and kidnapped him “when I told him
he ran the jail like a concentration camp” and that he is currently “torturing” him by keeping him
on lockdown 23 hours a day. The Eighth Amendment to the Constitution protects against cruel
and unusual punishment. However, merely being placed in administrative lockdown, even for
23 hours a day, does not rise to the level of a constitutional violation. See Argue v. Hofmeyer, 80
F. App’x 427, 429 (6th Cir. 2003) (prisoner’s confinement to his cell for 23 hours per day,
Monday through Friday, did not violate the Eighth Amendment); Parker v. Donnellon, No. 1112198, 2011 WL 3163524, at *3 (E.D. Mich. July 27, 2011) (finding that plaintiff who simply
pleaded that he was placed in lockdown “failed to plead the sort of conditions that give rise to a
violation of the Eighth Amendment.”). Plaintiff fails to state a claim regarding being in
lockdown.
Claim related to lost money
Plaintiff alleges that the jail stole $267 by not applying that money towards his bond.

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This is not a constitutional claim. However, even had Plaintiff claimed an unauthorized,
intentional deprivation of property in violation of the Due Process Clause, he would first have to
show that state post-deprivation remedies are inadequate. Hudson v. Palmer, 468 U.S. 517,
531-33 (1984); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). Kentucky has adequate
post-deprivation remedies for the confiscation or destruction of property, such as a tort action for
conversion against individual defendants. See Wagner v. Higgins, 754 F.2d 186, 192 (6th Cir.
1985). Consequently, Plaintiff’s claims related to his lost money must be dismissed.
Claims against Defendants Billings and Ehlscide
Plaintiff alleges that Defendants Billings and Ehlscide are “guilty of abusing a mentally
ill person for not reporting and aiding in this abuse by destroying several grievances asking for
help from this punk coward!” If a prison provides a grievance process, violations of its
procedures do not rise to the level of a federal constitutional right. Martin v. Crall, No. No. 3:05
CV P399 H, 2006 WL 515530, at *8 (W.D. Ky. Feb 27, 2006); Spencer v. Moore, 638 F. Supp.
315, 316 (E.D. Mo. 1986); Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982).
Consequently, Plaintiff has failed to state a claim against these Defendants.
Medical treatment claims
With regard to medical treatment, Plaintiff simply alleges that the jail does not “attend”
to medical treatment. Attached to his complaint are copies of several miscellaneous request
forms, two of which pertain to medical requests. The first states, “My ear is hurting so bad I
can’t sleep and the pain is making me want to scream. I need to see sargent immediately.” The
response was, “[S]ick call request received 9/26/12. You are on the list to be seen.” The second
states, “I’ve been on medical waiting list for over a week. I need to be seen on pain in my

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shoulder where you assaulted me and I believe where a brown recluse spider bit me in my ear.
Pus won’t stop coming out and I’ve been hurting for over a week.” The response was, “I have
notified the medical co. of your complaints.”
Plaintiff does not allege that after submitting the medical requests slips and being told
that he was on the list to be seen that he did not see medical personnel. Moreover, Plaintiff does
not name as a defendant any medical personnel at DCDC. He does name the DCDC Jailer as a
Defendant. However, “[t]o state a claim under § 1983, 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). “Respondeat superior1 is not a proper basis for liability under § 1983.”
McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006). “Nor can the liability of
supervisors be based solely on the right to control employees, or simple awareness of
employees’ misconduct.” Id. (internal quotations omitted). In other words, “liability under §
1983 must be based on active unconstitutional behavior.” Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999). Thus, Defendant Osborne’s position as Jailer does not automatically make him
liable for the actions/inactions of his subordinates. See, e.g., Brown v. Green, No. 97-1117, 1997
WL 777979, at *2 (6th Cir. Dec. 12, 1997) (“Defendant Green, being sued in her official
capacity as the Medical Director of the Michigan Department of Corrections, cannot be held
liable for an alleged constitutional violation, because the doctrine of respondeat superior does

1

Respondeat superior is “the doctrine under which liability is imposed upon an employer
for the acts of his employees committed in the course and scope of their employment.”
BALLENTINE’S LAW DICTIONARY (3d ed. 1969).
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not apply in § 1983 lawsuits to impute liability onto supervisory personnel.”); Farrow v. West,
320 F.3d 1235, 1238 n.1 (11th Cir. 2003) (holding that the regional director of prison medical
services was not liable for actions of subordinate medical staff). Plaintiff’s claims relating to
medical treatment will be dismissed.
Claims related to treatment by bailiffs and deputy
Plaintiff alleges that “Daviess County baliffs in 2011-2012 on several occassions have
ran me out of the Morton Holbrook Judicial Center where I couldn’t use law library or sit in on
court hearings of a lot of my friends.” The only state-court bailiff named as a Defendant is
Kenny Riley, and he is sued in both his individual and official capacities.
“A bailiff or an officer acting in that capacity enjoys absolute quasi-judicial immunity for
actions ‘specifically ordered by the trial judge and related to the judicial function.’” Riley v.
Hall, No. 3-10-0598, 2011 WL 1328864 at *5 (M.D. Tenn. Apr. 5, 2011) (quoting Martin v.
Hendren, 127 F.3d 720, 721 (8th Cir. 1997)). Thus, if the bailiffs were acting pursuant to a
judge’s order, they are immune from suit.
If the bailiffs were performing discretionary functions they have qualified immunity
shielding them from civil liability if their actions did not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Before reaching a qualified immunity issue, a court should determine
whether there has been a constitutional violation at all. Silver v. Franklin Township Bd. of
Zoning Appeals, 966 F.2d 1031, 1035 (6th Cir. 1992) (citing Siegert v. Gilley, 500 U.S. 226
(1991)). Here, it does not appear from the complaint that there has been a constitutional
violation. Plaintiff does not explain what he means when he alleges that bailiffs “ran me out of

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the Morton Holbrook Judicial Center.” Plaintiff does not allege that the bailiffs were acting
outside of a judge’s order or that he was not disturbing the peace or otherwise disrupting the law
library or courtroom proceedings when he was “run out” of the Morton Holbrook Judicial
Center, a pertinent question given the allegations elsewhere in his complaint concerning his
outburst outside a courtroom in which he used a racial epithet. Plaintiff does not allege that
force, much less excessive force was used against him. Moreover, he does not allege that Riley,
the only Defendant who is a bailiff, was one of the bailiffs involved in these allegations. Finally,
“[t]he courtroom is a nonpublic forum, where the First Amendment rights of everyone . . . are at
their constitutional nadir.” Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005). For these
reasons, the Court finds that Plaintiff fails to state a claim regarding being “run out” of the
Judicial Center.
Plaintiff also asserts that Deputy Carl Brown assaulted him and physically removed him
from Judge Jones’s courtroom. Deputy Brown is not a named Defendant.
Claims against non-state actors
Plaintiff’s claims against the revival minister Mr. Dollar, the Hells Angels, Fr. Vaughn,
and Saint Benedict’s Homeless Shelter all fail to state a claim because none of those parties are
state actors. The Constitution does not apply to the conduct of private persons; it applies to
conduct by the government. Conduct of private parties “lies beyond the Constitution’s scope in
most instances, . . . [though] governmental authority may dominate an activity to such an
extent that its participants must be deemed to act with the authority of the government and, as a
result, be subject to constitutional constraints.” Edmonson v. Leesville Concrete Co., Inc., 500
U.S. 614, 620 (1991). A private citizen is not liable for an alleged constitutional violation

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unless: (1) “the claimed constitutional deprivation resulted from the exercise of a right or
privilege having its source in state authority”; and (2) “the private party charged with the
deprivation could be described in all fairness as a state actor.” Id.
Nothing in Plaintiff’s complaint or attachments thereto show that these Defendants are
state actors, i.e., acted under color of state law. The claims against them will be dismissed.
Claims against CIA
The complaint contains no allegations against the CIA, although as part of his relief he
does ask for a part-time job at the CIA so that Plaintiff “can end terrorism forever.” When a
complaint fails to allege any action by a defendant, it necessarily fails to “state a claim for relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
Remainder of complaint
The remainder of Plaintiff’s claims relating to the list of things he wants for his son, such
as guitar lessons, “Quinn’s Ten Commandments,” and references to the Bible, the dinosaurs’
extinction, et cetera must be dismissed.
An action has no arguable factual basis when the allegations are delusional or “rise to the
level of the irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992);
see also Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). The Court need not accept as
true factual allegations that are “‘fantastic or delusional’” in reviewing a complaint for
frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at
328). Here, the remainder of the claims are “completely incomprehensible and contain[] no legal
theory upon which a valid federal claim may rest” and, to the extent they may be deciphered, are
“delusional”; dismissal is appropriate. Abner v. SBC (Ameritech), 86 F. App’x 958, 958-59 (6th

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Cir. 2004).
III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss the complaint.
Date:

February 15, 2013

cc:

Plaintiff, pro se
Defendants
4414.009

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