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Settles v. McKinney

United States District Court, Sixth Circuit

September 23, 2013

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

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, District Judge.

Before the Court is Defendants' motion to dismiss the amended complaint of Plaintiff, Gary Scott Settles.[1] Plaintiff's action arises from the circumstances of his arrest by officers of the Louisville Metro Police Department ("LMPD") on July 20, 2011. The Court reviewed Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and gave Plaintiff leave to file an amended complaint. Several claims that Plaintiff advances under 42 U.S.C. § 1983 remain: excessive force, failure to intervene, illegal search, false arrest, and failure to train. See ECF No. 17. The Court has now been fully briefed and will evaluate Defendants' motion to dismiss Plaintiff's entire amended complaint.

I.

In its initial screening, the Court outlined Plaintiff's account of the July 20, 2011 incident that occurred between Plaintiff and the LMPD. See ECF Nos. 9, 17. The Court incorporates those fact sections here and will briefly summarize facts of particular relevance to the Court's present order.

According to Plaintiff, on July 20, 2011, he was driving his motorcycle with a passenger. Unmarked LMPD police cars approached him, causing him to exit the motorcycle to avoid being hit. Defendant McKinney "handcuffed and then struck [him] in the left rear of [his] head" with a pistol. Defendants McKinney and Wright intentionally placed him on the hot asphalt under an idling vehicle, exposing him to exhaust fumes that burned his eyes, skin, and lungs. Other named officers watched and covered up McKinney and Wright's actions. Plaintiff was then transported to the hospital, where he received medical attention. During the incident, Plaintiff "did not flee from any person identifiable as a police officer, " resist arrest, or possess a machine gun and silencer. Defendants Healey and Redfield then conducted an illegal search of a residence without a warrant or consent.

Plaintiff further contends that various individuals, including the police chief and the mayor, are responsible for failing to train the officers and for "maintain[ing] a policy of cover[ing] up actions of their officers." Police later knowingly brought false charges against Plaintiff for fleeing and eluding police, wanton endangerment, resisting arrest, possession of a machine gun and silencer, and trafficking of a controlled substance.

The Court now takes judicial notice of the indictment and judgment of conviction presented by Defendants.[2] ECF Nos. 42(3), 42(6). Plaintiff was indicted on the charges of Trafficking a Controlled Substance in the First Degree while in Possession of a Firearm, Possession of a Handgun by a Convicted Felon, Wanton Endangerment in the First Degree, Fleeing or Evading Police in the First Degree, Resisting Arrest, and Illegal Use or Possession of Drug Paraphernalia. ECF No. 42(3). Plaintiff pleaded guilty to Possession of a Controlled Substance in the First Degree, Fleeing or Evading Police in the Second Degree, Wanton Endangerment in the First Degree, Illegal Use or Possession of Drug Paraphernalia, and Resisting Arrest. ECF No. 42(6). On July 2, 2012, Plaintiff filed the instant action.

II.

Pursuant to 42 U.S.C. § 1983, Plaintiff advances claims for various constitutional violations: 1) excessive force against Defendants McKinney and Wright, in their individual and official capacities; 2) failure to intervene against Defendants McKinney, Healey, Wright, Carthan, Browning, Sherrard, Fowler, Bottoms, Duncan, Eichberger, Frye, Lee, LeFlore, Morgan, and Walz, in their individual and official capacities; 3) illegal search and seizure against Defendants Healey and Redfield, in their individual and official capacities; 4) false arrest against Defendants McKinney, Healey, Sherrard, and Wright, in their individual and official capacities; and 5) failure to train against Defendants Harder, Stone, Pearson, Buckner, White, and Fischer, in their official capacities. ECF No. 17.

Defendants move the Court to dismiss all these claims. ECF No. 42. When considering a motion to dismiss pursuant to Rule 12(b)(6), courts must "construe the complaint in the light most favorable to the plaintiff" and "accept all well-pleaded factual allegations as true." La. Sch. Emps.' Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010). The Court will draw summary judgment and takes notice of the indictment and judgment of conviction, as they are "not subject to reasonable dispute." Fed.R.Evid. 201(b). all reasonable inferences in favor of the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A plaintiff "must plead enough factual matter' that, when taken as true, state[s] a claim to relief that is plausible on its face.'" Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010) (quoting Bell Atl. Corp., 550 U.S. at 556). "Plausibility requires showing more than the sheer possibility' of relief but less than a probab[le]' entitlement to relief." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But the Court is not required to "create a claim" for Plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).

III.

The Court will first address the constitutional claims against Defendants in their individual capacities. "To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law." Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1998)). Plaintiff's surviving claims arise out of the Fourth Amendment. Defendants do not dispute that they were acting under the color of law.

Defendants seek dismissal on the sole ground that Plaintiff's various convictions bar his claims under Heck. Heck v. Humphrey, 512 U.S. 477 (1994). Because of this, the Court's ...


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