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Lowe v. Boone, Co.

United States District Court, E.D. Kentucky, Northern Division, Covington

July 23, 2014

KURT J. LOWE, Plaintiff,
v.
BOONE, CO., SHERIFF'S DEPT., et al., Defendants.

MEMORANDUM OPINION AND ORDER

KAREN K. CALDWELL, Chief Judge.

Plaintiff Kurt J. Lowe is a pre-trial detainee confined at the Boone County Jail in Burlington, Kentucky. Proceeding without an attorney, Lowe filed a civil rights action pursuant to 42 U.S.C. § 1983 on May 2, 2014. [R. 1] The Court has granted his motion to proceed in forma pauperis by separate Order.

This matter is before the Court to address a number of motions filed by the plaintiff. The Court must then conduct a preliminary review of Lowe's complaint because he has been granted permission to pay the filing fee in installments and because he asserts claims against government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district court must dismiss any claim that 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. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Lowe's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts the plaintiff's factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

I

In his complaint, Lowe names as defendants the Boone County Sheriff's Department, Sheriff Michael Helmig, Lieutenant Jim Wagner, Rocky Wagner, Deputy Peace, the Boone County Attorneys Office, Bob Neace, Michael Mason, the Boone County Circuit Court Clerk, Dianne Prindle-Murray, the Boone County Jail, Edward Prindle, Captain Montgomery, Lieutenant Maydak, Sergeant Klute, Sergeant Linn, Deputy Beasley, the Retired Judges & Associates and Mediation & Arbitration Services Inc., A. Bailey Taylor, and "John and Jane Does 1-50." Each of the individual defendants is named in his or her individual and official capacity.[1] [R. 1, pp. 1-3]

Lowe alleges that since at least 2006, his complaints regarding corruption by local officials in Northern Kentucky prompted his wrongful arrest and prosecution by police and prosecutors, that local judges and the clerk of the court conspired to wrongfully convict him, and that several judges of this Court failed to act because of "complex and political" relationships with those local officials. [R. 1, ¶9-16]

Lowe further alleges that since May 2013, unidentified defendants failed to investigate threats directed towards him, claimed that Lowe had made threats against state senator John Schickel, and conducted surveillance of his person and property and investigated him for possible criminal conduct. [R. 1, ¶17-26] Lowe's complaint suggests (but does not state) that he was arrested and charged in September 2013 on unidentified criminal charges, which appear to be pending in Commonwealth v. Lowe, No. 13-CR-710 (Cir. Ct. Boone Co. 2013). [ See R. 28-1, pp. 23-24] Since that date, he alleges that unidentified defendants used excessive force during his arrest, took his property (including exculpatory evidence) from his person and prison cell, and interfered with his mail. [R. 1, ¶27-36] Lowe also contends that in his state criminal proceedings the prosecution has failed to provide the defense with discovery materials as required by Brady v. Maryland, 373 U.S. 83 (1963), and that the presiding judge has improperly refused him bail, denied him a speedy trial, denied his request for a bill of particulars. [R. 1, ¶37-45] Lowe further alleges that defendants have altered or destroyed court records, obstructed a criminal investigation, and violated his rights. [R. 1, ¶46-53] Lowe contends that these actions collectively violate his rights under the federal and Kentucky constitutions, and asserts a civil RICO claim as well as pendent state law claims for defamation, false arrest and imprisonment, the intentional infliction of emotional distress, and negligence. [R. 1, ¶54-76] For relief, Lowe asks this Court and the United States Attorney to protect his constitutional rights, and seeks compensatory damages. [R. 1, ¶77-80]

In the weeks since his complaint was originally filed, Lowe has filed (A) a series of motions to amend his complaint, (B) a number of requests seeking relief, assistance or intervention, and (C) nearly a dozen letters directed to the chambers of the presiding judge. For clarity's sake, the Court will address these filings by type rather than chronologically.

II

On May 14, 2014, Lowe filed a motion to amend his complaint, primarily to correct certain typographical errors, and to include five additional paragraphs of allegations similar to those in the original complaint. [R. 6]

Two weeks later, Lowe filed a motion to amend his complaint a second time by identifying Jane and John Does No. 1-4 as the Kentucky Correctional Psychiatric Center ("KCPC"), Dr. Samina Juneja, Southern Health Partners, and Nurse Vanover. In his motion, Lowe alleges that the trial court ordered that he undergo a competency examination at KCPC, and that while there, Dr. Juneja misrepresented the scope of a blanket release form as one merely to identify persons to contact in case of emergency medical care. Lowe alleges further mistreatment and torture upon his return to the jail. Apart from the factual allegations, the motion does not assert any cause of action against any of the defendants. [R. 13]

A few days after that, Lowe filed a motion to amend his complaint a third time by identifying Jane and John Does No. 5-8 as the "Senior Status Judge Program, " the Kentucky State Police, Emily Perkins, and Captain Anthony Taulbee. Unlike his prior motion, Lowe's second motion contained only the names and addresses of the putative defendants, but neither made factual allegations nor asserted legal claims against the defendants identified. [R. 19] Lowe filed his fourth motion to amend his complaint one week later by identifying Bill and Linda Smith as Jane and John Does Nos. 9-10, again providing only their mailing addresses. [R. 23]

On July 3, 2014, Lowe filed a "Verified Complaint" containing additional allegations regarding events occurring from 2006 to 2008 [R. 28, ¶1-29], followed by new allegations of misconduct by the judges presiding over his criminal proceedings in 2014. Like its predecessors, Lowe's pleading contained only factual allegations and was devoid of any effort to assert any legal claims arising out the conduct alleged. [R. 28, ¶30-42]

There is no evidence in the record that any of the defendants have been properly served with process under Rule 4 of the Federal Rules of Civil Procedure as required by Rule 4(l). Nonetheless, three putative defendants have - notwithstanding their apparent status as non-parties - filed oppositions to Lowe's requested amendments to include them. Nurse Jenny Vanover and Southern Health Partners filed a motion contending that Lowe's request to identify them as Does 3 and 4 should be denied because his proposed amendment makes no allegations against them. [R. 21] Emily Perkins argues that Lowe's claims are insufficiently pled or alternatively would fail as a matter of law rendering the proposed amendment futile. [R. 26]

With respect to Lowe's first motion to amend his complaint [R. 6], that motion will be granted as a matter of right pursuant to Federal Rule of Civil Procedure 15(a)(1).

Lowe's next four motions to amend his complaint are governed by Rule 15(a)(2), which requires court approval before the amendment is permitted, which "the court should freely give... when justice so requires." The Court has reviewed Lowe's second, third, and fourth proposed amendments to his complaint, and must deny leave to amend. Lowe's motions seek to amend his complaint to name as defendants persons previously identified only as a "Jane or John Doe" in his original complaint. [R. 13, 19, 23] But in each instance the proposed amendment fails to adequately state a claim for relief even under the liberal pleading standard set forth in Rule 8. Lowe's second motion seeks to add Dr. Samina Juneja, KCPC, Southern Health Partners, and Nurse Vanover as defendants. [R. 13] However, the proposed amendment makes no factual allegations of any kind against KCPC, ...


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