United States District Court, W.D. Kentucky, Bowling Green
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge.
a civil rights action brought by a convicted prisoner
pursuant to 42 U.S.C. § 1983. The Court has granted
Plaintiff Donald Joshua Salter 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 allowed to continue in part.
SUMMARY OF COMPLAINT
brings this action against Albany City Deputy Brad Cross
(#254), Parole Officer Matt Aaron (#1056), Clinton County
Sheriff Jim Guffey (#1250), and Kentucky State Trooper Jason
Warinner (#729), in both their official and individual
complaint, Plaintiff claims that Defendants used excessive
force against him. He alleges that on April 15, 2016, the
four Defendants approached the work truck in which he was a
passenger. He states that one or more of the defendant
officers asked him his name but that he informed them that he
had the right to remain silent. Upon being asked, he also
told the officers that he did not have any identification on
him. Plaintiff alleges that Deputy Cross then asked him to
step out the truck. Plaintiff states that, as he began to step
out of the truck, Deputy Cross grabbed him by his “left
wrist (hand)” and then shut the truck door on him as he
was opening it. Plaintiff states that once he was out of the
truck, he informed the officers that he had a pocket knife
clipped to him and told them that they could remove it. The
officers removed the pocket knife and again asked Plaintiff
to identify himself. Plaintiff alleges that when he again
refused to identify himself, all four Defendants began to
assault him. He specifically alleges that Trooper Warinner
punched him in the throat and grabbed him by the back of the
neck and that Deputy Cross slammed him to the ground. He
further alleges that Trooper Warinner grabbed him by the back
of the head and slammed his face into the concrete boat ramp
on which his work truck was parked. He also states that
Parole Officer Aaron grabbed him by the leg and dragged him
face down as another Defendant punched him in the side of the
face. Plaintiff alleges that, as a result of this assault, he
had to be taken to the hospital for medical attention.
relief, Plaintiff seeks compensatory damages, punitive
damages, and injunctive relief in the form of termination of
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 604. 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)).
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
(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).
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 (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 section 1983 claim
will not lie.” Christy v. Randlett, 932 F.2d
502, 504 (6th Cir. 1991).
axiomatic that individuals have a constitutional right not to
be subjected to excessive force during an arrest. Graham
v. Connor, 490 U.S. 386, 388 (1989). Claims of excessive
force in the context of an arrest are analyzed under the
Fourth Amendment's “objective reasonableness
standard.” Saucier v. Katz, 533 U.S. 194, 204
(2001) (citing Graham, 490 U.S. at 388). If the
amount of force used to accomplish the arrest is objectively
reasonable based on Fourth Amendment seizure principles, then
no constitutional violation occurred.
Graham, the Supreme Court established the test for
determining objective unreasonableness. Determining whether
the force used to effect a particular seizure is
“reasonable” under the Fourth Amendment requires
a careful balancing of the nature and quality of the
intrusion on the individual's Fourth Amendment interests
against the countervailing governmental interests at stake.
Graham, 490 U.S. at 396. While individuals clearly
have a right to be free from excessive force, police officers
have an essential duty to arrest suspects and, necessarily,
“the right to use some degree of physical coercion or
threat thereof to effect [the arrest].” Id.
Courts evaluate whether the arresting officer's use of
force is reasonable on a case by case basis, from the
perspective of an officer on the scene, and in light of the
“difficulties of modern police work.” Baker
v. City of Hamilton, Ohio, 471 F.3d 601, 606 (6th Cir.
2006) (internal quotations and citation omitted). Although
the ultimate inquiry is whether the totality of the
circumstances justifies the force used to accomplish the
arrest, the Supreme Court has identified three factors for
the district court to consider in determining reasonableness:
(1) the severity of the crime at issue; (2) whether the
suspect posed an immediate threat to the police officers or
others; and (3) whether the suspect actively resisted arrest
or attempted to evade arrest by flight. Graham, 490
U.S. at 396.