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Swarm v. Bolton

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

April 18, 2018

JOSHUA WAYNE SWARM PLAINTIFF
v.
DIRECTOR MARK BOLTON et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         Plaintiff, Joshua Wayne Swarm, a pretrial detainee presently incarcerated in the Roederer Correctional Complex (RCC), filed a pro se action pursuant to 42 U.S.C. § 1983. Subsequent to the filing of the complaint, Plaintiff filed two documents which the Court construes as motions to amend the complaint (DNs 8 & 9). In the first motion to amend (DN 8), Plaintiff seeks to change the name of Defendant Officer Smith to “Sgt. S. Green #359.” Plaintiff states that “there is no Officer Smith.” Plaintiff states that he had this Defendant's name incorrect because he could not read the writing on some of the paperwork. Plaintiff states that the correct name for this Defendant is “Sgt. S. Green #359.” Upon consideration, IT IS ORDERED that the motion to amend (DN 8) is GRANTED. The Clerk of Court is DIRECTED to terminate “Ofc. Smith” as a Defendant in this case. In his second motion to amend (DN 9), Plaintiff again explains the name confusion regarding this Defendant and includes an incident with this Defendant that Plaintiff requests be “put on the record.” Upon consideration, IT IS ORDERDED that the second motion to amend (DN 9) is GRANTED.

         The complaint and amendments are before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the reasons set forth below, this action will be dismissed.

         I. SUMMARY OF CLAIMS

         Plaintiff brings this action against four Defendants: (1) Mark Bolton, the Director of the Louisville Metro Department of Corrections (LMDC); (2) Sergeant Eubanks #363, LMDC; (3) Martin Baker, Supervisor, LMDC; and (4) Sergeant S. Green #359, LMDC. At the time Plaintiff filed this action, he was incarcerated at the LMDC. Subsequently, he was transferred to RCC. Plaintiff brings this action against Defendants in their official capacities. As relief, Plaintiff seeks monetary and punitive damages.

         According to the complaint, Plaintiff states that when he was initially arrested on August 12, 2017, he had in his possession “$350.00 cash and 2 debit cards.” According to Plaintiff, “[t]he cash and 1 debit card with $950.00 on it were in a small zip lock bag . . . . The other debit card was in [his] wallet.” According to Plaintiff, sometime after being placed in general population, he “became aware that [his] cash had not been placed on [his] account.” Plaintiff states that “[a] response to [his] request about [his] missing money declared that video ‘clearly shows inmate with $1.50 not $350.00 and debit card was placed inside wallet. As for anything else, bag is sealed and will not be opened until inmate gets released from custody.'” According to Plaintiff, the “staff signatures” on this response are illegible.

         Subsequently, Plaintiff states that he was transferred to Bullitt County and returned back to LMDC on October 6, 2017. Plaintiff states that when he returned to LMDC, he spoke with a “staff member in the booking area named Baker concerning this issue.” Plaintiff represents that Baker said he would take care of it, and on October 9, 2017, the “missing money was placed on [Plaintiff's] account suggesting that video evidence gave merit to [Plaintiff's] claim, contradicting the staff members with illegible signatures.” Plaintiff states that the “debit card is still missing.” Plaintiff asserts that his “property was stolen by an officer of LMDC.” He asserts a violation of the Fourth Amendment's “guarantee to be secure in [his] papers and effects.” He also asserts a violation of the Fifth Amendment which “guarantees that [he] shall not be deprived of property without due process.” Plaintiff further contends that he “received a $950.00 punishment for being booked into [LMDC].” He asserts Eighth and Fourteenth Amendment claims which protect him “from unusual punishment.”

         Plaintiff states that he was “denied the benefit of due process by staff when my subsequent grievances were not handled properly.” He further states that “grievance procedures were not followed by staff.” Plaintiff contends that Defendant Bolton “fosters a criminal element employed at LMDC by permitting thefts by staff and allowing ‘Code of Silence” to be encouraged and the perpetrators to go unpunished as is evidenced by the falsified responses to my requests.” Plaintiff states that Mr. Baker aided him partially, “but did not pursue the missing debit card.” Plaintiff states that staff members Smith and Defendant Eubanks “responded on 9-6-17 saying ‘video footage will be checked again, ' but did not follow through.” Plaintiff asserts that grievance procedures were not followed by staff.

         In his second amendment to the complaint, Plaintiff states that on November 20, 2017, Defendant Green asked Plaintiff why he needed “the information on the paperwork. He then asked why [Plaintiff] was doing this and [Plaintiff] told him [Plaintiff] could not speak to him about it.”

         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. 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.

         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)). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “However, while liberal, this standard of review does require more than the bare assertion of legal conclusions.” 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

         “Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635 (1980). “[A] plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). ÔÇťAbsent either element, a section 1983 claim will not ...


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