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McPeek v. Unknown Sioux City Dea Officers

United States District Court, N.D. Iowa, Western Division

April 25, 2017

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.

          ORDER

          LEONARD T. STRAND CHIEF UNITED STATES DISTRICT JUDGE

         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 ...

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