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Settles v. McKinney

United States District Court, Sixth Circuit

May 16, 2013

GARY SCOTT SETTLES, Plaintiff
v.
KEVIN O. McKINNEY 6875 et al., Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN II, District Judge.

Plaintiff Gary Scott Settles filed this pro se action under 42 U.S.C. § 1983 proceeding in forma pauperis. Upon the initial review of the original complaint pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), the Court found that Plaintiff had stated no allegations against fifteen of the twenty-two officers named as Defendants in the complaint. Those Defendants were therefore subject to dismissal. However, due to the seriousness of the allegations, the Court allowed Plaintiff the opportunity to file an amended complaint to identify the officers whom he alleges violated his rights. Plaintiff filed an amended complaint (DN 11), which is now before the Court for initial review pursuant to § 1915A and McGore v. Wrigglesworth, 114 F.3d at 604. For the reasons that follow, the Court will allow some of Plaintiff's claims to proceed past initial screening and dismiss others.

I.

Plaintiff is currently an inmate at the Fulton County Detention Center. He sues the following twenty Louisville Metro Police Department (LMPD) police officers or detectives: Kevin O. McKinney; Steven W. Healey; Brian M. Wright; Chauncey T. Carthan; Aaron Browning; Erin M. Redfield; Brian Sherrard; Michael Fowler; Andre Bottoms; J.T. Duncan; Andrew M. Eichberger; Antoine Frye; Lee; William C. LeFlore; Barron Mourise Morgan; Keith Clifford Walz; Jimmy Harder; Darron Stone; Richard Pearson; and Kenton Buckner. Plaintiff also sues Louisville Mayor Greg Fischer and former LMPD Police Chief Robert White. He sues each Defendant in both his or her individual and official capacities.

Plaintiff states that on July 20, 2011, he was driving his motorcycle accompanied by a passenger. He states that he was being followed too closely by an unmarked LMPD police car driven by Defendant Wright. He states that the police car was driving recklessly and dangerously. When Plaintiff attempted to turn his motorcycle around in a driveway, several more unmarked police cars suddenly appeared. To avoid being hit by one of the vehicles, he had to "lay the motorcycle down in the grass." He states, "My passenger and I were clear of the motorcycle before it slowly rolled into a utility pole and fell over." Plaintiff states, "The vehicles that could have easily killed [him and his passenger] turned out to be unmarked police vehicles. There were no marked police vehicles and no blue lights or sirens were ever engaged." He states that these actions amount to a "use of deadly force." He states that the officers involved included Defendants McKinney, Healey, Wright, Carthan, Browning, Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore, Morgan, and Walz. Plaintiff states these actions violate the Fourth and Eighth Amendments.

Plaintiff further states that he "was handcuffed and then struck in the left rear of my head, top (occiput) with an officer's pistol" by Defendant McKinney. Plaintiff states that Defendant McKinney "injured his own hand when illegally striking me in the head with a pistol while concurrently screaming, Fleet Footed Mother F***er.'" Plaintiff further states that Defendant McKinney later lied about his injuries and stated that Plaintiff had resisted arrest, "thereby making a false charge against me...." Plaintiff states these actions violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights.

Plaintiff states that he was then placed on the hot asphalt by Defendants McKinney and Wright and had to lay on the ground under an idling vehicle exposed to exhaust fumes causing burning in his eyes, skin, and lungs. He states that the officers intentionally placed his face under the exhaust with malicious intent in violation of the Fourth and Eighth Amendments.

Plaintiff also states that he was "repeatedly cursed at, threatened and taunted by officers." He states that he was "placed in great fear of physical harm or death." He states these officers were Defendants McKinney, Healey, Wright, Carthan, Browning, Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore, Morgan, and Walz. He states that this violated the Fourth, Eighth, and Fourteenth Amendments.

Plaintiff states that other officers stood by and watched and covered up the officers' mistreatment of him, violating the Fourth, Fifth, Eighth, and Fourteenth Amendments. He states that the officers were Defendants McKinney, Healey, Wright, Carthan, Browning, Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore, Morgan, and Walz.

Plaintiff states that he was then transported by ambulance to University Hospital. He states that Emergency Medical Services (EMS) records show that he was unconscious and unresponsive when he arrived at University Hospital. He states that he underwent triage, a CT scan, and other tests. He also states that he "endured a nurse fingering my rectum as she said, This will make him talk, ' as police looked on. A catheter was administered. This was all very painful and degrading." He further states that a medical staff member told one of the detectives that his wound required staples but that the detective responded that Plaintiff did not need staples. Plaintiff states that he was not given the treatment he needed due to the detective's interference. He states that his hospital discharge papers showed that he received staples/sutures but he did not. Plaintiff further states that officers lied to EMS and hospital personnel about his injuries, which interfered with his treatment, endangered his life, and resulted in permanent injury. He states these actions violated the Fourth, Fifth, Eighth, and Fourteenth Amendments. Plaintiff states that Defendants Browning and Fowler called for EMS "and obviously lied about the origins of my injuries."

Plaintiff also avers that Defendants Healey and Redfield conducted an illegal search of a residence and that police did not obtain a warrant or consent to search. He asserts that police stated they had the residence under surveillance and that therefore they had time to secure a warrant. He states that this violated the Fourth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kentucky Constitution.

Plaintiff also states that Defendants McKinney and Healey brought false charges against him for fleeing and eluding police and for possession of a machine gun and silencer; that Defendants McKinney, Healey, and Sherrard brought false charges against him for trafficking; and that Defendants McKinney, Healey, and Wright brought false charges against him for resisting arrest. He states these Defendants violated his due process rights.

Plaintiff states that police also wrongfully seized his leather jacket, work boots, $161.00, and personal papers. He states that Defendant Healey was the lead detective and therefore responsible. Plaintiff also states that the Jefferson Circuit Court has since released his property upon his motion.

Plaintiff further states, "The officers names appearing in the doctored' Administrative Incident Report were incomplete and lacked code numbers as required. Obviously another method employed as a matter of course by the L.M.P.D. in order to hinder investigations by their victims." He states that this violates due process requirements. He states that Defendants Stone, Pearson, Harder, and Buckner "failed to investigate either the alleged pursuit or the illegal use of force."

Plaintiff further states that "all involved officers, detective[s], their immediate supervisors (Defendants # 17, 18, 19, and 20), " as well as former Police Chief White, and Mayor Fischer "are responsible for all actions of their subordinate officers and employees." He states that supervisors "maintain a policy of cover[ing] up actions of their officers." Plaintiff states that officers have committed similar violations in the past and have not been properly disciplined and that officers are improperly trained. He states that supervisors Defendants Stone, Pearson, Harder, Buckner, White, and Fischer "are responsible as well as Louisville Metro Government, generally." He further states that "[a]ll persons in supervisory capacity (Defendants #17, 18, 19 and 20), " as well as "field training officers responsible for training those persons, the Police Chief..., his Assistant Chief and the department generally, as well as Louisville Metro Government and its Mayor... are guilty of deliberate indifference, failure to train and discipline officers and supporting policies of covering up police misconduct." He states that the foregoing actions violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

As relief, Plaintiff seeks $1.5 million in compensatory damages and $1.5 million in punitive damages; injunctive relief in the form of directing Defendants McKinney and Healey "to have no contact with the plaintiff[;]" payment of "all past and future medical ...


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