United States District Court, W.D. Kentucky, Louisville Division
Plaintiff, pro se Counsel for Defendant Weigel Defendants
Angela Napier, Kelly Napier, and Daniel Napier General
Counsel, Justice & Public Safety Cabinet, Office of Legal
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Court, Judge
Robert Willis McKinney, an inmate incarcerated at Kentucky
State Reformatory, filed a pro se complaint pursuant
to 42 U.S.C. § 1983 (Docket Number (DN) 1). On May 25,
2017, the Court performed its initial review of the complaint
(DN 9) pursuant to 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007) and allowed the following claims to proceed:
(1) the retaliation claims against Defendants Angela Napier
and Weigel based on their alleged filing of false
disciplinary charges against Plaintiff and (2) the legal mail
claim against Defendant Weigel. All other claims and
Defendants were dismissed from this action. Plaintiff has now
filed an amended complaint (DN 41), and Defendant Weigel has
filed a motion to strike the amended complaint (DN 42).
Court will first address Defendant Weigel's motion to
strike. Defendant Weigel argues that the Court should strike
Plaintiff's amended complaint because Plaintiff failed to
file a “Motion for Leave to Amend the Complaint.”
Plaintiff's amended complaint (DN 41) was filed in
response to the Court's Order (DN 29) granting him leave
to amend his complaint. Therefore, no motion is required.
these reasons, Defendant Weigel's motion to strike (DN
42) is DENIED.
amended complaint (DN 41) is presently before the Court for
review pursuant to 28 U.S.C. § 1915A and McGore v.
Wrigglesworth, 114 F.3d at 608.
SUMMARY OF CLAIMS
amended complaint (DN 41), Plaintiff seeks to add two new
Defendants to this action. He identifies these Defendants as
follows: (1) Daniel Napier, a unit administrator at
Northpoint Training Center (NTC); and (2) Kelly Napier, a
records custodian at NTC. He sues these Defendants in only
their individual capacities. As relief, Plaintiff seeks
alleges that Defendant Kelly Napier filed false disciplinary
charges against him in retaliation for filing a report about
Defendant Angela Napier's unlawful conduct and because he
obtained “legal material from the inmate legal library
to appeal [her] retaliatory actions.” Plaintiff states
that as a result of the false disciplinary charges, he spent
15 days in segregation before the charges were later
dismissed and expunged by Warden Bottoms. Plaintiff also
alleges that Defendant Kelly Napier conspired with Defendants
Weigel and Daniel Napier to “have a retali[a]tory
transfer submitted to place [Plaintiff] in a h[e]ightened
level of danger at Eastern Kentucky Correctional
Complex.” Plaintiff further states that “at the
end of the Fifteen day[s] of seg[re]gation he was
transfer[r]ed without notice or ab[i]lity to appeal.”
According to Plaintiff, Defendant Kelly Napier denied him
access to the courts when she issued a disciplinary report
“that was for obtaining statutes to use in a Circuit
Court filing under KRS Chapter 61 to appeal to the courts her
actions, punishing by seg[re]gation for obtaining legal
material for said court filing and obstructing
[Plaintiff's] ab[i]lity to correctly file an action into
the Courts . . .” Finally, Plaintiff alleges that
Defendant Weigel took Plaintiff's legal mail to Defendant
Daniel Napier. Thereafter, according to Plaintiff, Defendant
Daniel Napier “did co[n]spire with Kelly Napier and
Michelle [Weigel] to retaliate against [Plaintiff] and the
motive was an attempt to deter [Plaintiff] from engaging in
protected conduct of filing a re[p]ort and grievance.”
STANDARD OF REVIEW
Plaintiff is a prisoner seeking relief against governmental
entities, officers, and/or employees, this Court must review
the instant amended complaint 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 608.
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)).
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)). “But the district
court need not accept a ‘bare assertion of legal
conclusions.'” Tackett v. M & G Polymers,
USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
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).