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Roberts v. Morvac

United States District Court, E.D. Kentucky, Southern Division, London

November 14, 2018

DAVID MORVAC, et al., Defendants.



         Plaintiff Dennis Shawn Roberts is an individual confined at the Wayne County Detention Center in Monticello, Kentucky. Proceeding without an attorney, Mr. Roberts has filed an amended civil rights action pursuant to 42 U.S.C. § 1983. [R. 14.[1]

         By separate order, the Court has granted Mr. Roberts's motion to proceed without prepayment of the filing fee. [R. 17.] Thus, the Court must conduct a preliminary review of Roberts's complaint pursuant to 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. McGore v. Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). A complaint is subject to dismissal as “frivolous” where “it lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).


         The Court evaluates Mr. Roberts's complaint under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts his factual allegations as true, and his legal claims are liberally construed in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Even so, the principles requiring generous construction of pro se pleadings are not without limits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Roberts v. Lexington Fayette Urban County Government, No. 07-cv-95-KSF, 2007 WL 1136743 (E.D. Ky. April 16, 2007). The Court is not required to create a claim for a plaintiff, nor to “conjure up unpled allegations.” Moorman v. Herrington, No. CIV A 4:08-CV-P127-M, 2009 WL 2020669, at *1 (W.D. Ky. July 9, 2009)(citations omitted).

         Mr. Roberts's complaint is somewhat unintelligible and alleges several unrelated claims against different officials, thus his allegations are difficult to parse. However, it appears that he seeks to assert: (1) claims against Defendants Deputy Bruce Gregory and Captain Tim Koger for denying Mr. Roberts access to a law book so that he could seek a change of venue in his state criminal case and (2) an excessive force claim against Defendants Deputy David Morvac and Jailer Harvey Shearer. [R. 14 at 3-4.] Roberts also names the City of Monticello Kentucky as a Defendant, although the basis for his claim against the City is unclear. Id. at 2.

         Mr. Roberts seeks to bring these claims in this action pursuant to 42 U.S.C. § 1983. To establish a § 1983 claim, a plaintiff must show that he was deprived of a constitutional right and that the deprivation occurred at the hands of defendant who was a “state actor, ” or acted under color of state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980); Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994). Thus, applying this standard, each of his claims will be examined in turn.


         Mr. Roberts's allegation that he was denied access to a law book is, in essence, a claim alleging that he was denied access to the courts. The right of access to the courts guaranteed by the First Amendment “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). However, the concern is “a right of access to the courts, not necessarily to a prison law library.” Walker v. Mintzes, 771 F.2d 920, 932 (1985) (emphasis in original); see also Lewis v. Casey, 518 U.S. 343, 350 (1996) (noting that Bounds did not establish a right to a law library). Moreover, “[b]ecause Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Rather, to establish a claim that the jail has interfered with his right of access to the courts, a prisoner must show actual injury to a nonfrivolous claim. Id. at 353-55.

         Mr. Roberts's complaint alleges that he repeatedly asked Deputy Gregory to let him see a law book so that he could file what he characterizes as a “habeas corpus on the Judge and Matthew Leveridge the prosecutor” seeking a change of venue in his criminal case because of personal conflicts between Mr. Roberts and Mr. Leveridge. Id. at 3. He alleges that Captain Koger also violated his right to access legal research materials. Id.

         However, a review of the state court record shows that Mr. Roberts was represented by counsel throughout his state criminal proceedings in the Circuit Court of Wayne County, Kentucky. Commonwealth v. Roberts, Nos. 18-CR-0038, 18-CR-0039, 18-CR-0045-002 (Wayne Cir. Ct. 2018).[2] The United States Court of Appeals for the Sixth Circuit has held that, where counsel is appointed to represent the prisoner plaintiff in his criminal action pending against him, as a matter of law, the state has fulfilled its constitutional obligation to provide him with full access to the courts. Holt v. Pitts, 702 F.2d 639, 640 (6th Cir. 1983).

         Moreover, to the extent that he suggests that he was harmed because he was unable to file a pro se motion for a change of venue, Mr. Roberts does not have a First Amendment right to meaningful access to the courts with respect to efforts to represent himself in his criminal case. By its terms, the right of access to the courts extends only to an inmate's direct criminal appeal, habeas corpus applications, and civil rights claims related to the conditions of confinement. Lewis, 518 U.S. at 354-55. It does not apply to a pro se defendant's efforts to represent himself at his criminal trial. United States v. Smith, 907 F.2d 42, 44 (6th Cir. 1990) (rejecting contention that either the First or the Sixth Amendment require that a criminal defendant who waives his Sixth Amendment right to counsel is entitled to an adequate law library to satisfy his constitutional right of access to the courts); Smith v. Hutchins, 426 Fed.Appx. 785, 788 (11th Cir. 2011) (“... a criminal defendant who seeks to proceed pro se has no right to access a law library to aid him in his own defense at trial where he has already been provided the option of legal counsel.”) (collecting cases); Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (affirming dismissal of a § 1983 suit by a prisoner because he “had no constitutional right to access a law library in preparing the pro se defense of his criminal trial.”).

         For these reasons, Mr. Roberts's denial of access to the courts claim will be dismissed without prejudice. As this is the only claim alleged against Deputy Gregory and Captain ...

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