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Jones v. Pfeil

United States District Court, W.D. Kentucky

March 22, 2018



          Joseph H. McKinley, Jr., Chief Judge

         Plaintiff Lovell Javhon Jones, a prisoner presently incarcerated at the Fulton County Detention Center (FCDC), filed this pro se complaint pursuant to 42 U.S.C. § 1983 while he was incarcerated in the Henderson County Detention Center (HCDC). Subsequent to filing the complaint, Plaintiff sent four letters to the Court (DNs 7, 9, 10 & 11), which the Court construes as motions to amend the complaint. In one of the amendments filed January 11, 2018 (DN 9), Plaintiff seeks to change the name of one of the Defendants named in Plaintiff's original complaint, Bill Markwell, to William I. Markwell. The motion to amend (DN 9) is GRANTED. The Clerk of Court is DIRECTED to change Defendant Bill Markwell to William I. Markwell in the docket of this action. The other three motions to amend (DNs 7, 10 & 11) mostly restate allegations Plaintiff included in his original complaint. These motions to amend (DNs 7, 10 & 11) are GRANTED.

         This matter is now before the Court for initial review of the complaint (DN 1) and two amendments (DNs 10 & 11) 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, the Court will allow an excessive-force claim and a bodily-privacy claim to proceed against Defendant Stone in his individual capacity. The Court will also allow Plaintiff to amend his failure-to-treat claims brought against Defendant “RN Kendra” in her individual capacity. All other claims and Defendants will be dismissed from this action.


         In his complaint, Plaintiff identifies nine Defendants. The nine Defendants are identified by Plaintiff as follows: (1) Jason Pfeil, Assistant Public Advocate with the Department of Public Advocacy; (2) Tina McFarland, Supervisor at the Department of Public Advocacy; (3) William I. Markwell, the “Head Prosecutor” with the Commonwealth's Attorney's Office; (4) Kurt R. Denton, “Assistant Prosecutor” with the Commonwealth's Attorney's Office; (5) Amy Brady, the Jailer at HCDC; (6) Leslie Gibson, a Colonel at HCDC; (7) Deputy Stone, a Deputy at HCDC; (8) “RN Kendra, ” the “Head Nurse in Charge” at HCDC but employed by Southern Health Partners; and (9) Southern Health Partners (SHP). All Defendants are sued in their individual and official capacities. As relief, Plaintiff seeks compensatory and punitive damages. He also requests “unconditional release/sentenced overturned.” On or about May 8, 2017, Plaintiff entered a guilty plea to a Class D felony charge of criminal in possession of a forged instrument in Henderson Circuit Court. Plaintiff states that he thought the plea agreement called for 30 days incarceration and 3 years shock probation. According to Plaintiff, Defendant Pfeil represented to him that he would receive “(30) day's more in jail and being released on June 7, 2017 to start [his] (3) year's shock probation.” Plaintiff states that his attorney in the criminal case, Defendant Pfeil, lied to him about the plea agreement. Plaintiff states that the plea agreement was altered after he signed it. Plaintiff states that the “shock agreement was altered by the prosecution, and [Defendant] Pfeil never told [Plaintiff] anything about any type of special conditions to be released on shock probation.” Plaintiff states that he never agreed to pay $2, 850.00 restitution before he could be released on shock probation, and Defendant Pfeil “never told [him] that restitution had to be paid for [him] to be released on shock probation.” According to Plaintiff, this “sentence of pay or stay is unlawful and wrong.” Plaintiff further states that “[n]o one has ever heard of anyone having to pay restitution to get out on probation or find a job from jail to be released on shock probation.” Further, Plaintiff states that Defendant Pfeil “also failed to disclose the term's and conditions of shock probation, that, Plaintiff would have to serve (5) year's on probation instead of (3) year's that [Plaintiff] agreed to.” Plaintiff states that Defendant Pfeil “failed to make a reasonable investigation that is reasonably necessary for Plaintiff's defense.” According to Plaintiff, Defendant Pfeil failed to get a witness statement from a witness who could show that the check had been cleared to be cashed, and he failed to “retrieve emails that shows that [Plaintiff] was mailed the check from a third party asking for money.” Plaintiff states that the evidence would have shown that he was not aware of the check being fraudulent and “was not trying to deceive the bank, but protect us both from this happening.” Plaintiff states that he “did not know that the check was fraudulent due to two banks clearing it.” Plaintiff states that he “should have never been charged with a criminal in possession of a forged instrument 2nd degree (identity). On the police report it's a 3rd degree offence, which [Plaintiff's] attorney told [him] that's what it was up until the day of [Plaintiff's] sentencing on May 8, 2017.” Plaintiff states that the result of Defendant Pfeil's actions “was a greater punishment [than] Plaintiff . . . was told he was agreeing too, and resulted in a violation of [Plaintiff's] substantial rights.” Plaintiff asserts that Defendant Pfeil provided him ineffective assistance of counsel in violation of the Sixth Amendment, was negligent in his representation of Plaintiff, induced Plaintiff to plead guilty, and deceived Plaintiff. Plaintiff states that Defendant Pfeil “stated that the prosecution is racist and a d**k, that if [Plaintiff] did not sign the plea agreement that he would use cruel and unusual punishment against me at trial and would impose a excessive sentence on me.” According to Plaintiff, Defendant Pfeil's “errors were so serious as to deprive me of a fair trial and fair plea agreement.” Plaintiff questions how his attorney, Defendant Pfeil, could “allow the Commonwealth prosecutor to scratch out a sentence on a agreement and write one in without [Plaintiff] knowing about the altered plea before [Plaintiff] signed it.” Plaintiff alleges that Defendant Pfeil conspired against him “and allowed the original plea to be altered.” According to Plaintiff, Defendant Pfeil “conspired with the prosecution by allowing the plea offer to be altered and failed to tell his client.” Plaintiff states that the prosecution failed to uphold “its bargain” which violated Plaintiff's due process rights. Plaintiff states that the prosecution altered the plea agreement. He further states that Defendant Markwell refused to release Plaintiff on his June 7, 2017, release date “locking [Plaintiff] into an altered shock agreement that [Plaintiff] never saw or was told about by [his] court appointed lawyer [Defendant] Pfeil until after, [Plaintiff] signed [the] plea agreement.” According to Plaintiff, on August 7, 2017, the following occurred:

[Plaintiff] was in court due to writing many letters and hand written motions to get this matter settled. [Plaintiff] also offered to pay $500 towards [his] restitution that day if the prosecution would honor the shock agreement and release [him]. [He] was told by [Defendant] Markwell that they would take the $500.00 towards [Plaintiff's] restitution, but [Plaintiff] need[ed] to find a job from jail before he would release [Plaintiff]. Again harsh stipulation were enforced that anyone knows can't be done. How can anyone find a job while sitting in a jail cell? Again, [Plaintiff] was refused release and [his] attorney Heather Hotson was unable to get [Defendant] Markwell to release [Plaintiff] on shock probation.

         Plaintiff states that he asked Defendant Markwell “to give [him] the same chance that he was giving to everyone else who was receiving shock probation, and to be treated with the same fairness that he was giving to a certain group of people who is not the same color as me, but yet their charges was much worse.” Plaintiff asserts that he is “being treated differently than everyone else receiving shock probation.” According to Plaintiff, on December 20, 2017, his attorney Margret Ivie tried to “get [him] released.” Plaintiff states that at that time, his mother agreed to pay $700.00 to get him released, but Defendant Markwell would not release him. Plaintiff states that “Mrs. Ivie stated that [Defendant] Markwell gave her several reasons that don't make sense to why he will not agree to release [Plaintiff].” Plaintiff states that “if you take a look into everyone else from Henderson, Evansville, and surrounding area's you would see that [Defendant] Markwell is not holding anyone else in jail over a restitution payment. He is actually letting people out with worse charges than [Plaintiff].” As to his plea agreement and failure to be released on June 7, 2017, Plaintiff asserts claims under 42 U.S.C. § 1981; 42 U.S.C. § 1983; Sections 2, 3, 4, 7, 10, and 11 of the Kentucky Constitution; and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

         Plaintiff states that on the date he was supposed to be released, Deputy Carter “abused his authority during count instead of seeing the tears in [Plaintiff's] eyes from being denied release and chose to write [Plaintiff] up instead of to try to help [Plaintiff] getting [him] kicked out of the Life Changing Program.” Plaintiff states he was again written up on July 22, 2017. According to Plaintiff, some inmates threatened to do bodily harm to him and “stole a nice amount of stuff from [Plaintiff] while the Deputies had [Plaintiff] sitting up in booking. With them threatening [Plaintiff's] safety the jail staff should have removed them from the gym not [Plaintiff].” Plaintiff states that he talked to Defendant Stone about his stuff being stolen and “kept trying to explain [his] side of things.” According to Plaintiff, while his hands were behind his back, Defendant Stone struck him and put him into a “chock forcing [Plaintiff] down the hall while [Plaintiff's] pants was all the way down exposing [his] privates to female staff and others.” Plaintiff states that all he “ever wanted was fair treatment like everyone else! Now the jail has refused [Plaintiff] to work and earn good time. . . . They claim it is due to medical reasons.” Plaintiff states that he was asked by Deputy Cradock, “[h]ow do [you] expect Southern Health Partners to release [you] to work when [you] keep putting in sick calls.” Plaintiff states that he is sleeping on the floor where he has “been for most of the time here with bugs craweling on [him].” Plaintiff also states that “the health providers here Southern Health Partners [are] denying [him] medical services, refusing to check [his] blood pressure, refusing to check [his] blood sugar, and failing to obtain [his] medical records, so [he] could take all the proper medication and dosages that [he] need[s].” Plaintiff states that he has been threatened by Defendant Gibson “to be thrown in the seg until [Plaintiff] leave[s] for expressing [his] concerns about mistreatment by her staff.” Plaintiff further states that on September 6, 2017, he was “taken to traffic court about [his] fines.” Plaintiff states that he told the judge in traffic court all about the wrong that was being done to him regarding his May 8, 2017, plea agreement. According to Plaintiff, when he returned to HCDC he was never given lunch that day.


         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. 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.

         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. Claims against Defendants Pfeil, McFarland, Markwell, and Denton

         Plaintiff alleges numerous constitutional violations and improprieties associated with his May 8, 2017, guilty plea entered in Henderson Circuit Court. Plaintiff alleges that his legal counsel was ineffective, negligent, deceived Plaintiff, altered the plea agreement without Plaintiff's consent, denied him a fair trial, improperly induced him to sign the plea agreement, and conspired with the prosecutor. Plaintiff further alleges that the prosecutor failed to uphold his end of the bargain, violated Plaintiff's due process rights, treated Plaintiff differently than others receiving shock probation, altered the plea agreement after Plaintiff signed it, and wrongly refused to release Plaintiff. Plaintiff seeks monetary damages for these alleged violations and “unconditional release/sentenced overturned.” Under the Heck doctrine:

[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.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Later, in Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), the Supreme Court reemphasized that “a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” As to the claims against Defendants Pfeil, McFarland, Markwell, and Denton, the prosecutors and defense counsel associated with Plaintiff's plea agreement, success as to the ...

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