United States District Court, W.D. Kentucky, Bowling Green
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE.
Eric Todd Lyvers, a prisoner currently incarcerated in the
Luther Luckett Correctional Complex,  filed a pro se
complaint pursuant to 42 U.S.C. § 1983 (DN 1). This
matter is before the Court on initial screening of the
complaint pursuant to 28 U.S.C. § 1915A.For the reasons
that follow, the Court will dismiss a portion of the
complaint and allow a portion to continue.
SUMMARY OF CLAIMS
brings this civil-rights action against the following
Defendants in their individual and official capacities:
Kentucky State Police (KSP) Officer James Newkirk; Edmonson
County Sheriff's Deputies Wally Ritter and Jordan Jones;
Edmonson County Commonwealth's Attorney Tim Coleman; and
public defender Sam Lowe.
complaint, Plaintiff alleges that on December 6, 2014, he was
arrested on charges of “Poss. Cont. Sub. 1st degree,
2nd Offense (methamphetamine)”; “Drug
Paraphernalia [illegible]”; “Oper Mtr Vehicle
u/influence Alc/Drugs/Ect. -1st Off”; and
“Obstructed Vision and/or WindShield.” He alleges
that Defendant Officer Newkirk “used past history to
stop and search, then fabricated evidence against me stating
said spoon, and capsule tested pos. for meth. Thus committing
perjury to the Courts and Grand Jury[.]” Plaintiff
attaches a KSP Report of Forensic Laboratory Examination as
to the spoon and capsule showing that “No controlled
substances were identified” on either material. He
advises that the Report was completed on December 23, 2014,
but that the grand jury “never heard my case until Feb.
2015 last of month.”
claims that Defendant Deputy Ritter “personally
assisted and conducted field test on said spoon and capsule.
Stating said night that they was possitive, assisting on all
fabrications of evidence to arrest and confine me.” He
additionally claims that Defendant Deputy Jones also
“assisted and conducted” with Defendants Officer
Newkirk and Deputy Ritter “with said evidence”
and that the three Defendants “search my vehicle
illegally after I stated due to speaking with attorney no you
cant search my car.”
Plaintiff claims that Defendant Commonwealth's Attorney
Coleman “allowed” Defendants Officer Newkirk and
Defendant Deputies Ritter and Jones “to use falsified
evidence against me before the Grand Jury to indict me
falsely and keep me incarcerated on charges. After knowing
results were back stating No Controlled Sub. identified and
said results completed . . . two months before Grand Jury
even heard my case.” He claims that Defendant Coleman,
therefore, allowed and assisted the officer/deputies with
Plaintiff alleges that Defendant Lowe, his public defender,
“neglected said duties under the oath he took to
represent me fairly and in accordance to law. Allowing false
evidence to be used against me and keep me imprisoned on
charges I did not commit.” He continues that the
“proof of Officers KSP Newkirk Deputies Ritter and
Jones lying and falsifing evidence has tainted my whole case
which should have constituded dismissal of case long before
now.” As relief, Plaintiff seeks monetary and punitive
damages, release from custody, and a public apology for false
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. See
McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997), overruled on other grounds by Jones v. Bock,
549 U.S. 199 (2007). 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 §
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 trial 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.
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)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “[A] 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 pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557).
courts are to hold pro se pleadings “to less
stringent standards than formal pleadings drafted by lawyers,
” Haines v. Kerner, 404 U.S. 519 (1972), this
duty to be less stringent “does not require us 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 courts “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).