Ketchum v. Albuquerque Police Dept.

• Decision Date: 29 November 1993
• Citation: 958 F.2d 381
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 381

958 F.2d 381

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Robert H. KETCHUM, also known as John Q. Shangreaux, also known as Rev. Guy Simpson, Plaintiff-Appellant, v. ALBUQUERQUE POLICE DEPARTMENT; Bernalillo County Detention Center; Roswell Police Department; Tucumcari Police Department; Defendants-Appellees.

No. 91-2200.

United States Court of Appeals, Tenth Circuit.

March 12, 1992.

Before LOGAN, BARRETT and EBEL, Circuit Judges.

ORDER AND JUDGMENT ^*

BARRETT, Senior Circuit Judge.

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Robert H. Ketchum (Ketchum) appeals from an order of the district court granting in part and denying in part his motion to amend, dismissing his 42 U.S.C. § 1983 claim with prejudice, and dismissing his 42 U.S.C. § 1985 claim without prejudice.

On February 9, 1990, and September 20, 1990, Ketchum, appearing pro se, submitted two civil rights complaints against the Albuquerque Police Department (APD), the Bernalillo County Detention Center (BCDC), the Roswell Police Department (RPD), and the Tucumcari Police Department (TPD), hereinafter collectively referred to as appellees. Ketchum's two actions were apparently consolidated and filed in the district court on January 11, 1991. Our record fails to explain the unusually long delay between the dates on Ketchum's complaints and the district court's filing date.

Within his complaints, Ketchum alleged that: he had been falsely arrested on six different occasions in three different cities; his broken hand was untreated; he was shackled to a wall naked in a choke hold; he was falsely arrested for disorderly conduct; he was hog-tied with chains; he was isolated in a rubber room and chained to a wall naked; and he was slapped around by a black officer named Wren. Ketchum also alleged that his mail was arbitrarily suppressed and that he was denied medical treatment.

Appellees BCDC, RPD, and TPD, filed their answers on March 26, 1991. They denied that: Ketchum was falsely arrested; Ketchum was abused in the jails; Ketchum's mail was censored; Ketchum was irreparably harmed; Ketchum was denied medical treatment. Appellees alleged that Ketchum's arrests were based on probable cause and that Ketchum's complaint should be dismissed because the doctrine of respondeat superior is inapplicable under §§ 1983 and 1985.

Appellee APD filed its answer on March 28, 1991, and alleged that: all of its actions were in good faith; it did not breach any duty owed to Ketchum; Ketchum's complaint should be dismissed for failure to state a claim upon which relief can be granted.

On April 3, 1991, Ketchum filed an opposition to defendants' answers in which he alleged that: there was a conspiracy to deprive him of his rights; he was repeatedly and wrongfully charged with offenses and falsely jailed; the defendants have or had a policy which discriminated against the transients, homeless, and hobos; the policy was enforced by local police agencies in New Mexico and resulted in the violation of his right; he was entitled to declaratory and injunctive relief because he was falsely arrested five times in less than six months.

On April 29, 1991, Ketchum filed a motion to amend in which he named as defendants the City of Albuquerque, the County of Bernalillo, John Doe Albuquerque Police Officers one through four, the director of the BCDC, Officer Wren, BCDC Corrections Officers John Doe one through six, the cities of Roswell and Tucumcari, the counties of Chavez and Quay, and John Doe Tucumcari and Roswell police officers. Within his motion to amend, Ketchum alleged that the defendants had: conspired to deprive him of his constitutional rights; falsely arrested him six times; failed to grant him access to courts; gagged and shackled him without due process; denied him medical care; falsely detained him for about 42 days; and "wilfully acted with bad faith and with deliberate, intentional, and nefarious disregard to plaintiff's rights."

On May 14, 1992, appellees BCDC, RPD, and TPD responded that Ketchum's motion to amend should be denied for failure to attach a copy of the proposed amended pleading.

On May 15, 1991, Ketchum, having allegedly been notified that the clerk of the district court was unable to locate his opposition to answer, filed a supplemental opposition to answer in which he alleged that defendants: had conspired to deny him due process of law by false arrests; had damaged his personal property, an eagle feather; did not exercise due care in dealing with him; were acting upon city policy regarding transients.

On May 29, 1991, appellees BCDC, RPD, and TPD filed a response to Ketchum's supplemental opposition to answer and urged that: Ketchum's conspiracy claims should be dismissed as conclusory; Ketchum's allegations of damage to his property, an eagle feather, should be dismissed inasmuch as adequate state post-deprivation remedies are available; Ketchum's allegation that defendants were not exercising due care in their dealings with him and other transients is barred because allegations of negligence are insufficient to state a claim under § 1983.

On August 9, 1991, the district court entered an order granting Ketchum's motion to amend, in part, and granting appellees' motions to dismiss:

BCDC, RPD, and TPD specifically object to the motion to amend on the ground that plaintiff violated D.N.M. LR-Cv 7.3 ... [because] plaintiff's motion to amend did not have the proposed amended complaint attached.... Considering plaintiff's pro se status, plaintiff's motion to amend is sufficient to meet the attachment requirement.

The motion to amend also lists more defendants in the caption than the first complaint. Plaintiff, however, fails to explain how these additional defendants fit into his proposed amended complaint. For that reason, the complaint should not be amended to allow the additional defendants listed in the caption. On the other hand, because plaintiff's motion to amend contains new allegations, the complaint should be amended to reflect those allegations. I, therefore, find that plaintiff's motion to amend should be granted in part.

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The defendants wish to dismiss plaintiff's complaint for failure to state a § 1983 and § 1985 claim for which relief may be granted.... in view of plaintiff's pro se status, the court will not construe plaintiff's pleadings as strictly as it would construe the pleadings prepared by an attorney. Haines v. Kerner, 404 U.S....