United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING, UNITED STATES DISTRICT JUDGE
Wischer is an inmate confined at the Kentucky State
Reformatory. Proceeding without an attorney, Wischer has
filed a civil rights complaint pursuant to 42 U.S.C. §
1983. (Doc. # 1).
Court must conduct a preliminary review of Wischer's
Complaint because he has been granted permission to pay the
filing fee in installments (Doc. # 9) 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. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Wischer's Complaint, the Court
affords it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
alleges that on May 20, 2012, officers Eastham and Hager of
the Ludlow Police Department were circling around the block
of residential homes based upon a call to the police station
that a woman had been seen vomiting outside a home. They were
approached by several young men who told them that a woman
was being taken advantage inside a home at 272 Stonesay.
Wischer contends that Eastham and Hager entered the home
without probable cause. Once inside, they found Wischer, as
well as an intermittently conscious woman whom they suspected
was suffering from alcohol poisoning. Paramedics arrived and
transported the woman for emergency medical care. Wischer
contends that his person and the home were then searched
without his permission, and evidence seized in violation of
the Fourth Amendment. (Doc. # 1 at 2-4).
indicates that he was later charged with first-degree rape,
but was released on a $5, 000.00 bond pending trial.
Wischer's 57-page Complaint sets forth at great length
alleged insufficiencies and improprieties arising from the
police investigation into the events of that night, as well
as pretrial court proceedings and his sentencing.
Id. at 5-11. Wischer's rambling complaint
vaguely contends that the criminal prosecution was conducted
in violation of his due process and equal protection rights,
was based upon unreliable testimony and physical evidence,
was based upon evidence obtained in violation of the Fourth
Amendment, and that his guilty plea was not knowing and
voluntary. Id. at 12-49. Wischer separately contends
in a single page that the Ludlow Police violated his Eighth
Amendment rights in various respects, including the use of
excessive force. Id. at 31.
has named as defendants the Ludlow Police Department and
Officers Love, Eastham, Hager and Powell. Wischer does not
request that this Court invalidate his conviction; instead,
he asks this Court to “plea with State Court for his
dismissal.” Id. at 53. He also requests that
the Ludlow Police Department be ordered to publicly announce
that his trial was unfair, and asks for “just
compensation” in the amount of $1, 000.00 per day of
incarceration under the takings clause of the Fifth
Amendment. Id. at 50, 55.
Kentucky Court of Justice's online website indicates that on
January 18, 2013, Wischer pled guilty to one count of
violating Ky. Rev. Stat. 510.050 for second-degree rape by
rendering the subject incapacitated through the use of an
intoxicating substance. That offense is a Class C felony. The
Circuit Court of Kenton County, Kentucky sentenced him to 8
years imprisonment. In 2014, the trial court denied
Wischer's Motion for shock probation, and in 2016, denied
his Motion to Vacate his conviction and sentence pursuant to
RCr 11.42. Comm. v. Wischer, No. 12-CR-00528 (Cir.
Ct. Kenton Co. 2012).
he filed his Complaint in this action, Wischer filed two
motions for relief. In the first, Wischer requests that the
Court “suspend” the sentence imposed by the
Kenton Circuit Court. (Doc. # 13). The only authority cited
by the plaintiff is Ky. Rev. Stat. 439.265, which authorizes
the circuit court that imposed the sentence to grant
“shock” probation. As a matter of federal law, if
Wischer seeks an earlier or immediate release from physical
custody, his only remedy is to seek a writ of habeas corpus;
he may not use a civil action to directly or indirectly
undermine or impugn the validity of his criminal conviction.
A habeas corpus proceeding is the only mechanism available
for him to do so. Preiser v. Rodriguez, 411 U.S.
475, 490 (1973).
addition, Ky. Rev. Stat. 439.265 permits Wischer to seek
shock probation only from the court that imposed his
sentence-Kenton Circuit Court. Finally, Ky. Rev. Stat.
439.265(4) prohibits granting shock probation where
“the defendant is a violent offender as defined in KRS
439.3401.” That section specifically includes
“any person who has been convicted of or pled guilty to
the commission of ... (e) The commission or attempted
commission of a felony sexual offense described in KRS
Chapter 510.” Ky. Rev. Stat. 439.3401(1)(e).
Wischer's conviction under Ky. Rev. Stat. 510.050 renders
him categorically ineligible for shock probation. This Motion
will therefore be denied on both procedural
and substantive grounds.
also filed a motion to appoint counsel to represent him in
these proceedings pursuant to 18 U.S.C. § 3006A. (Doc. #
15). However, § 3006A authorizes the appointment of
counsel in federal criminal or habeas corpus proceedings;
this civil action constitutes neither. A federal court may be
permitted to appoint counsel to represent a pro se
party in civil litigation, but only in truly exceptional
circumstances. Lanier v. Bryant, 332 F.3d 999, 1006
(6th Cir. 2003); 28 U.S.C. § 1915(e)(1). When
considering whether to grant such a request, the court
considers the complexity of the case, the movant's
likelihood of success on the merits of the claim, and the
ability of the plaintiff to represent himself competently.
Cleary v. Mukaskey, 307 F. App'x 963, 965 (6th
Cir. 2009). In this case, the claims asserted by Wischer are
not unduly complex and, as explained below, present no
likelihood of success on the merits in this proceeding. The
Court has considered the Lanier factors and
concludes that this case does not present the kind of
extraordinary circumstances which would warrant the
appointment of counsel for the plaintiff, and the Court will
deny the motion.
having conducted the screening required by 28 U.S.C.
§§ 1915(e)(2), 1915A, it is plain that
Wischer's Complaint must be dismissed. As previously
noted, Wischer's request for relief from his criminal
sentence is not properly before this Court in a civil rights
proceeding. Preiser, 411 U.S. at 490; Wilkinson
v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prisoner
in state custody cannot use a § 1983 action to challenge
‘the fact or duration of his confinement.'”).
Wischer seek damages in a civil rights proceeding based upon
actions which he contends violated his constitutional rights
during the course of criminal proceedings against him.
“[W]hen establishing the basis for the damages claim
necessarily demonstrates the invalidity of the conviction ...
the claimant can be said to be ‘attacking ... the fact
or length of ... confinement.'” Heck v.
Humphrey, 512 U.S. 477, 481 (1994). Here, Wischer
squarely challenges the constitutional validity of the police
investigation and criminal prosecution against him.
Therefore, he may not pursue damages in a civil rights case
before he has obtained relief from his conviction, something
he has thus far failed to do. See id. at 486-87
(“[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.”).
Wischer's claim is therefore premature unless and until
he obtains such relief, and will be dismissed without
Wischer makes a passing complaint that the Ludlow Police
Department violated his Eighth Amendment rights through his
treatment during incarceration. (Doc. # 1 at 31). To the
extent that claim is based upon his brief detention in 2012
before he was released on bond, any such claim has long been
barred by the one-year statute of limitations. Ky. Rev. Stat.
§ 413.140(1)(a); Hornback v. Lexington-Fayette Urban
Co. Gov't., 543 F. App'x 499, 501 (6th Cir.
2013); Mitchell v. Chapman, 343 F.3d 811, 825 (6th
Cir. 2003). Since 2013, Wischer has been confined at the
state prison in LaGrange, Kentucky, see Wischer v.