United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
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.
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
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).
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.
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.
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.
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.
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). 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).
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
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