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Cleaver v. Smith

United States District Court, W.D. Kentucky, Louisville Division

February 7, 2018

JOSEPH CLEAVER, JR., Plaintiff,
v.
DEP. CLENNON SMITH et al., Defendants.

          Plaintiff, pro se Counsel for Defendant Smith

          Defendant Ward Hardin County Attorney

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE

         Plaintiff Joseph Cleaver, Jr., a pretrial detainee presently incarcerated at the Hardin County Detention Center, filed a pro se “Amended Civil Rights Complaint Under 42 U.S.C. § 1983” (Docket Number (DN) 12). This matter is before the Court for initial review of the amended complaint 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). For the reasons that follow, John Ward, Sheriff of Hardin County, will be added back to this action as a Defendant, and the following claims will be allowed to proceed: (1) the constitutional official-capacity claims against Defendant Ward for failure to train and failure to supervise; (2) the constitutional official-capacity claims against Defendants Ward and Smith for failure to have a proper use-of-force policy; (3) the state-law claims against Defendant Smith for assault and battery; and (4) the state-law claims against Defendant Ward for negligently hiring, retaining, supervising, training, and failing to develop a policy as to the proper use of force.

         I. SUMMARY OF CLAIMS

         On July 7, 2017, the Court performed initial review of the complaint and allowed the Fourth and Fourteenth Amendment excessive-force claims against Defendant Smith, a Deputy Sheriff with the Hardin County Sheriff's Office, in his individual capacity to proceed and dismissed Defendant Jon Ward, the Hardin County Sheriff, and the claims against him (DN 9). In the amended complaint now before the Court, Plaintiff seeks to add John Ward[1] back into this case as a Defendant. Plaintiff seeks to add new claims against him. He further seeks to add additional claims against Defendant Smith. Plaintiff sues each Defendant in his official and individual capacities. He seeks “actual and punitive damages, ” for the Court to “issue a permanent restraining order enjoining Defendant Smith from using or exerting excessive force against Plaintiff or citizens of the Commonwealth of Kentucky, ” and for costs and attorney's fees.

         In the amended complaint, Plaintiff states that Defendant Smith “has a prior history of exerting excessive force upon citizens and has had multiple claims of excessive force brought against him in the multiple departments and has been disciplined for excessive force.” Plaintiff states that Defendant Ward “had prior knowledge concerning [Defendant] Smith's history of excessive force against citizens . . . .” Plaintiff asserts that he has video that supports the alleged use of excessive force by Defendant Smith and that several deputies who witnessed the incident “have documented [Defendant Smith's] unconstitutional behavior by incident report condoning such actions.” According to Plaintiff, as a result of the alleged wrongful acts by Defendants, he has suffered “severe physical and mental pain and suffering, loss of health, mental illness, and other long term injuries. Plaintiff also has lost earning capacity and anxiety.” Plaintiff asserts Fourth, Eighth, and Fourteenth Amendment claims against Defendants. Plaintiff further alleges that Defendants Ward and Smith, in their official capacities, failed to “properly train, develop policy and procedure for use of excessive force, properly discipline, supervise or act in a reasonable manner.” He also asserts state-law claims for assault and battery against Defendant Smith and claims for negligent hiring, retention, supervision, and training as to Defendant Ward. Finally, Plaintiff asserts that Defendant Ward negligently failed to “develop policy or procedure in regard to the proper use of force by members of his department . . . .”

         II. STANDARD OF REVIEW

         Because Plaintiff is a prisoner seeking relief against governmental entities, officers, and/or employees, this Court must review the instant amended complaint action under 28 U.S.C. § 1915A. Under § 1915A, the trial court must review the amended complaint and dismiss the amended complaint, or any portion of the amended 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.

         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] 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).

         III. ANALYSIS

         A. Federal Constitutional Claims

         1. Fourth and Fourteenth Amendment ...


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