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Carver v. Commonwealth

United States District Court, W.D. Kentucky, Bowling Green

February 1, 2019

ROY ANDERSON CARVER, JR. PLAINTIFF
v.
THE COMMONWEALTH OF KENTUCKY et al. DEFENDANTS

          MEMORANDUM OPINION

          JOSEPH H. MCKINLEY JR., DISTRICT JUDGE UNITED STATES DISTRICT.

         Plaintiff Roy Anderson Carver, Jr., initiated this civil rights action. Because Plaintiff is proceeding in forma pauperis, this Court must review the complaint pursuant to 28 U.S.C. § 1915(e)(2). For the reasons that follow, the action will be dismissed.

         I.

         Plaintiff initiated this action by filing a 15-page complaint on a Court-supplied 42 U.S.C. § 1983 form (DN 1); a 30-page type-written “civil rights complaint” (DN 1-1); 73 pages of miscellaneous exhibits (DN 1-2); and a 93-page Memorandum in Support (DN 1-3).

         On the complaint form, Plaintiff indicates that he is bringing this action against the following 23 Defendants - the Commonwealth of Kentucky; the Kentucky Department of Corrections (KDOC); KDOC Commissioner Rodney Ballard; the Warren County Regional Jail (WCRJ); WCRJ Jailer Jackie T. Strode; WCRJ Acting Jailer Stephen Harmon; Warren County Circuit Court Judge Steven Allen Wilson; the “Commonwealth of Kentucky's Prosecutor's Office”; Chief Prosecutor Christopher Cohron; Deputy Prosecutor Kimberly Georghagen; Deputy Prosecutor Kori L. Beck; Family Court Judge David C. Lanphear; the Kentucky Department of Public Advocacy (DPA); DPA Commissioner Damon Preston; DPA Director James Rohree; Public Defender Eric Clarke; the City of Bowling Green; Bowling Green Mayor Bruce Wilkerson; the Bowling Green Police Department (BGPD); BGPD Chief Doug Hawkins; BGPD Patrolman David Bragg; and BGPD Patrolman Brock Messina. Plaintiff sues all Defendants in both their official and individual capacities.

         The statement of facts in Plaintiff's complaint form largely contains legal conclusions and a broad statement of his claims. His type-written complaint appears to contain a more specific version of his factual allegations. The Court will therefore summarize the factual allegations of his type-written complaint for purposes of this initial review.

         Plaintiff first alleges that on January 20, 2017, he was “vehicularly assaulted” by Phyllis M. Bailey. On January 23, 2017, Plaintiff was served with an “E.P.O.” signed by Defendant Family Court Judge David Lanphear. Plaintiff alleges that at a hearing before Defendant Lanphear, Defendant Lanphear “openly engaged and advised assailant/stalker Phyllis Bailey to seek criminal sanctions against petitioner based on her false and deceptive medical claims entered as evidence” regarding the medical treatment she received at the Bowling Green Medical Center emergency room on January 21, 2017, at 3:00 a.m.

         Plaintiff alleges that on or about February 15, 2017, “assailant/stalker Bailey contacted [Defendant BGPD] Officer Messina and again changed her story and account of events from the night of her . . . confrontation with petitioner to procure falsified narratives for a fraudulent manufactured indictment and evidence lacking without probable cause for a pure and genuine arrest of petitioner as retaliation from his appear with another female . . . .”[1]

         Plaintiff states that on or about February 18, 2017, Defendant Messina arrived at the home of “petitioners' friend at approximately 1:30 a.m. in the morning awaking him from sleep asking ‘do you know Phyllis Bailey and can I come inside to look around your apartment?'”

         Plaintiff alleges that on or about March 15, 2017, Defendant Commonwealth Attorney Cohron “impaneled a sworn grand jury to facilitate his collusion with and of the varying and inconsistent narratives of the assailant/stalker Phyllis Bailey's Lanphear court testimonies, her revised account of the previous information of the assault given to [Defendant Messina] and the sworn grand jury testimony given to present the false and manufactured evidence for felony warrant arrest of petitioner executed on April 1, 2017, and petitioner was taken and booked into the [WCRJ] by [Defendant] Messina.”

         Plaintiff alleges that the indictment and felony warrant “caused the [BGPD] by and thru BGPD Patrolmen [] Bragg and [] Messina to make unreasonable contact without reasonable probable cause with petitioner (20) days before their unnecessary, excessive, and unreasonable objective and or subjective assault and battery in bad faith and false imprisonment of his person stopping him” and “threatening to arrest him before forcibly removing him from a nondescript and unidentified friends' residence, and violently restraining him without probable cause.”

         Plaintiff next states that on or about April 3, 2017, he appeared before Defendant Circuit Court Judge Wilson and Defendant Commonwealth Deputy Prosecuting Attorney Georghagen for:

arraignment hearing, mirandizing and advising the petitioner of his constitutional rights under Kentucky law in denying petitioner his Fourth Amendment due process rights and his Fourteenth Amendment equal protection of the law rights . . . to a fair and reasonable bond hearing through his loquacious interpretation and rhetoric for defiance to the commands of the United States Constitution in his unfounded and improper request for court order state disposition from Indiana law enforcement authorities from a 1986 case that his deputy prosecutor kept stalling to satisfy her desire to hold petitioner indefinitely and unlawfully in detention causing petitioner extreme emotional and mental distress . . . .

         Plaintiff next alleges that on September 15, 2017, Defendant Judge Wilson “revoked petitioner's surety bond denying petitioner his Fourth Amendment due process rights and Fourteenth Amendment equal protection of the law rights . . . by and through ineffective assistance of appointed counsel Defendant Clarke's loyalty to the state and court not to challenge the state and court in any open court oral arguments against the surety bond revocation . . . .”

         Plaintiff then states that on or about November 13, 2017, he “was taken to court for an unscheduled ALFORD PLEA offer the court itself in place of hearing the petitioner's MOTION TO DISMISS WITH PREJUDICE on the merits of ineffective assistance of counsel.” He states that he “was denied his Motion Dismiss Without Prejudice and offered by the Court without assistance from [Defendant] Clarke's continuing and ongoing loyalty to the court and state to deny the petitioner his Fourth Amendment due process rights, Fifth Amendment rights against self-incrimination and Fourteenth Amendment equal protection of the law rights . . . .”

         Plaintiff then alleges that on or about November 15, 2017, he was “taken to Court to sign the Courts Alford PLEA without assistance of his appointed counsel in the continuing and ongoing loyalty to the court and state . . . coercing petitioner to sign off on the Court's ALFORD PLEA DEAL for his immediate release from the unlawful detention . . . .”[2]

         Plaintiff claims that “Defendants Judges, Prosecutors, [DPA], Lawyers, and [BGPD] Officers intentionally or recklessly humiliated Petitioner by orchestrating multiple court hearings and criminal charges to cover up the state conspired civil rights deprivation schemes to excessively and unnecessarily physically injure petitioner in the aide of conspiracy to destroy petitioners' registered business in Indiana in its relocation move to Kentucky.”

         Plaintiff next alleges that WCRJ Jailer Strode and Acting Jailer Harmon:

Condone and encourage policies for inadequate medical and non-mandatory 72 hour medical and dental quarantine services and treatment at their jail facility first starting at their intake/booking procedures failing in the detection, intervention and prevention of life threatening contagious communicable diseases by all persons classified and designated by the CENTERS FOR DISEASE CONTROL as ALL PEOPLE ALL DANGEROUS (APAD), pretrial detainees, prisoners, control release prisoners, transferees and the jailers' employees from undetected and undiagnosed HIV/AIDS and HIV/AIDS related disease carrier inmates and repeat offenders and tuberculosis transmission among undiagnosed inmates, in violation of [various federal statutes], exposure from human mule traffickers, nutritionally inadequate meals and dietary programs, lack of proper inmate exercise and recreation equipment and poor inadequate ventilation and living conditions.

         Plaintiff seeks compensatory and punitive damages as well as declaratory and various forms of injunctive relief.

         II.

         On review under 28 U.S.C. § 1915(e), a district court must dismiss a case at any time if it determines that the action 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. 28 U.S.C. § 1915(e)(2)(B); 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).

         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 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[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)).

         Although courts are to hold pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519 (1972), this duty to be less stringent “does not require us 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 courts “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. A. 42 U.S.C. § 1983 Claims

         “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). “Absent either element, a section 1983 claim will not lie.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).

         The Court will attempt to analyze Plaintiff's multitude of claims in the manner he presented them in his § 1983 ...


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