McPeek v. Unknown Sioux City Dea S

• Decision Date: 25 April 2017
• Docket Number: No. C17-4011-LTS,C17-4011-LTS
• Parties: TRAVIS RAY MCPEEK, Plaintiff, v. UNKNOWN SIOUX CITY DEA OFFICERS, SIOUX CITY POLICE OFFICER ZACH LEWIS, OFFICER TYLER, SWAT TEAM, IOWA DEPARTMENT OF CORRECTIONS OFFICERS, PAROLE OFFICER JIM THOMPSON, PAROLE OFFICER MANNY SCARMON, UNKNOWN WOODBURY COUNTY JAIL OFFICERS, SIOUX CITY POLICE DEPARTMENT, Defendants.
• Court: U.S. District Court — Northern District of Iowa

TRAVIS RAY MCPEEK, Plaintiff, v. UNKNOWN SIOUX CITY DEA OFFICERS, SIOUX CITY POLICE OFFICER ZACH LEWIS,OFFICER TYLER, SWAT TEAM, IOWA DEPARTMENT OF CORRECTIONS OFFICERS,PAROLE OFFICER JIM THOMPSON, PAROLE OFFICER MANNY SCARMON,UNKNOWN WOODBURY COUNTY JAIL OFFICERS, SIOUX CITY POLICE DEPARTMENT, Defendants.

No. C17-4011-LTS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION

April 25, 2017

ORDER

I. INTRODUCTION

This matter is before me on plaintiff's complaint (Doc. No. 3), filed on February 21, 2017, plaintiff's motion to appoint counsel (Doc. No. 5), filed on March 17, 2017, and plaintiff's motion for discovery (Doc. No. 8), filed on March 31, 2017. Also before the court is the response by the government (Doc. No. 10), filed on March 31, 2017, the response by the Woodbury County Jail (Doc. No. 11), filed on March 31, 2017, and the response by the Sioux City Police Department and Sioux City Police Officer Zach Lewis (Doc. No. 13), filed on March 31, 2017. Despite those responses and plaintiff's familiarity with federal court proceedings, plaintiff opted not to file anything further, which suggests that he desires to stand on his pleading rather than amend it. In light of the procedural posture of this case, the court deems it appropriate to conduct a further review of plaintiff's claims.

II. APPOINTMENT OF COUNSEL AND DISCOVERY

Appointment of counsel is based on multiple factors, including the complexity of the case, and, although the court does appoint attorneys in some federal actions, it is not required to appoint an attorney. See Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006); see also Taylor v. Dickel, 293 F.3d 427, 428 (8th Cir. 2002) (discussing 28 U.S.C. § 1915(e)(1)); Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (discussing denial of appointment of counsel); McCall v. Benson, 114 F.3d 754, 756 (8th Cir. 1997) (same); Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be considered for appointment of counsel in civil case); Plummer v. Grimes, 87 F.3d 1032, 1033 (8th Cir. 1996) (same); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an indigent litigant enjoys neither a statutory nor a constitutional right to have counsel appointed in a civil case). Given the record in this action, the court does not believe that the assistance of counsel is warranted. Therefore, plaintiff's motion to appoint counsel shall be denied.

With respect to plaintiff's motion for discovery, there is no reason to conduct discovery at this point in the proceeding because plaintiff's complaint is deficient in numerous ways. Accordingly, plaintiff's motion for discovery shall be denied.

III. STANDARD OF REVIEW

A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Smith v. St. Bernards Reg'l Med. Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless, they must be weighed in favor of plaintiff. See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). A court, however, can dismiss at any time a complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state a claim on which relief may be granted or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim is"frivolous" if it "lacks an arguable basis in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); accord Cokeley v. Endell, 27 F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those claims that fail "'to raise a right to relief above the speculative level. . . .'", Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490 U.S. at 325. See, e.g., Denton, 504 U.S. at 27 (considering frivolousness); Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may dismiss an action if an affirmative defense exists).

IV. CLAIMS ASSERTED

Currently confined at the Yankton County Jail in Yankton, South Dakota, plaintiff, proceeding pro se, submitted a complaint to redress issues that appear to be related to his supervision while on parole, his arrest pursuant to search warrants on July 29, 2015, subsequent searches of his smartphone and laptop pursuant to a search warrant and his confinement for six months within a police station and then at the Woodbury County Jail until he no longer faced theft charges because they were dismissed, assault charges because the jury acquitted him and his parole hold because criminal charges were resolved in his favor. Jurisdiction is predicated on 28 U.S.C. § 1343. Under 28 U.S.C. § 1391(b), venue appears to be proper as the events giving rise to the instant action occurred in this district and the defendants are located in this district. As relief, plaintiff states that he wants to be awarded $33,000,000 in damages and a protective order to prevent further harassment.

V. ANALYSIS

A. Claims Under 42 U.S.C. § 1983

Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983 was designed to provide a "broad remedy for violations of federally protected civil rights." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 685 (1978). However, 42 U.S.C. § 1983 provides no substantive rights. See Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94 (1989); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). "One cannot go into court and claim a 'violation of [42 U.S.C.] § 1983' — for [42 U.S.C.] § 1983 by itself does not protect anyone against anything." Chapman, 441 U.S. at 617. Rather, 42 U.S.C. § 1983 provides a remedy for violations of all "rights, privileges, or immunities secured by the Constitution and laws [of the United States]." 42 U.S.C. § 1983; see also Albright, 510 U.S. at 271 (42 U.S.C. § 1983 "merely provides a method for vindicating federal rights elsewhere conferred."); Graham, 490 U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S. 1, 4 (1980) ("Constitution and laws" means 42 U.S.C. § 1983 provides remedies for violations of rights created by federal statute, as well as those created by the Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by the Constitution or laws of the United States and (2) the alleged deprivation of that right was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

B. Plaintiff's Claims

A pro se party's pleadings are to be liberally construed and are held "to less stringent standards than formal pleadings drafted by lawyers." Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)); accord United States v. Sellner, 773 F.3d 927, 932 (8th Cir. 2014). Liberal construction requires that, "if the essence of an allegation is discernible . . ., then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). "Although pro se complaints are to be construed liberally, 'they still must allege sufficient facts to support the claims advanced.'" Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006) (quoting Stone, 364 F.3d at 914). Additionally, the court is not permitted to act as counsel to either party. See Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) ("A pro se litigant should receive meaningful notice of what is expected of him, but the court is not permitted to act as counsel for either party."). Therefore, the court is not permitted to construct claims on behalf of a pro se party, even though it has a duty to liberally construe his or her pleadings. Cf. id.; Farnsworth v. United States, 106 Fed. Cl. 513, 518 (Fed. Cl. 2012) (noting that a pro se plaintiff is entitled to liberal construction of his or her pleadings; however, there is no duty on the part of the court to create a claim which the pro se party has not asserted in his or her pleading). Likewise, the court will not rewrite deficient pleadings to save them. See Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) ("Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997))); Dawkins v. Glover, 308 F. App'x 394, 395 (11th Cir. 2009) ("However, [the court] will not act as de facto counsel for pro se parties or rewrite a deficient pleading." (formatting omitted)).

Although courts construe pro se pleadings liberally, pro se litigants, like all other parties, must abide by the Federal Rules of Civil Procedure. See, e.g., Williams v. Harmon, 294 F. App'x 243, 245 (8th Cir. 2008) (affirming dismissal where pro se litigant failed to comply with the Federal Rules of Civil Procedure). Those rules...