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Lyvers v. Newkirk

United States District Court, W.D. Kentucky, Bowling Green

June 27, 2017

ERIC TODD LYVERS PLAINTIFF
v.
JAMES NEWKIRK DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, JUDGE.

         Plaintiff Eric Todd Lyvers, a prisoner currently incarcerated in the Luther Luckett Correctional Complex, [1] 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.[2]For the reasons that follow, the Court will dismiss a portion of the complaint and allow a portion to continue.

         I. SUMMARY OF CLAIMS

         Plaintiff 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.

         In the 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.”

         Plaintiff 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.”

         Next, 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 perjury.

         Finally, 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 imprisonment.

         II. LEGAL STANDARD

         Because 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 § 1915A(b)(1), (2).

         A claim 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.

         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)). “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).

         Although 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).

         III. ...


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