MCCRAY v. DETAMORE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JOHNEY MCCRAY, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-03006-SEB-DML

)

ALEJANDRO R., )

NAT GIBSON, )

K. STEPHEN, )

D. KODY, )

KODY DETAMORE, )

JOSHUA MYERS, )

DAN HUNKELER, )

TIM HENNINGER, )

ROY SMITH, )

)

Defendants. )

ORDER ON PENDING MOTIONS

Plaintiff Johney McCray, a prisoner at the Howard County Jail in Kokomo,

Indiana, pro se initiated this civil rights lawsuit on October 20, 2020, in Howard Superior

Court (Indiana). Defendants removed this action on November 16, 2020, invoking our

federal question jurisdiction under 28 U.S.C. § 1331. On December 4, 2020, we screened

Plaintiff's Complaint and, following careful review, dismissed the complaint for its

failure to state any claim upon which relief could be granted. See 28 U.S.C. § 1915A(b).

We allowed Plaintiff to file an amended complaint within forty days from the date of our

screening order or risk losing his claims for good.

Plaintiff timely complied with this request and filed his amended complaint on

January 5, 2021. Defendants have now filed a Motion for Screening of Plaintiff's

Amended Complaint, pursuant to 28 U.S.C. § 1915A. Because 28 U.S.C. § 1915A(a)

requires us to screen "a complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity," Defendants'

motion is therefore granted. For the reasons stated herein, Plaintiff's Amended

Complaint must be dismissed.

Also before the Court is Plaintiff's Motion to Appoint Counsel [Dkt. 13] as well as

his "Motion for Leave in Support to Compell [sic] Response for Counsel," in which

Plaintiff seeks a ruling on his pending Motion to Appoint Counsel. These motions are

both denied as moot.1

Discussion

I. Screening of Plaintiff's Complaints Pursuant to 28 U.S.C. § 1915A(a)

A. Standard of Review

As set forth in our initial screening order, our court must dismiss any complaint, or

any portion thereof, if it is determined to be legally frivolous or malicious, fails to state a

claim for relief, or seeks monetary relief against a defendant who is immune from such

relief. In determining whether the complaint states a claim, the Court applies the same

standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017). To survive dismissal,

1 Plaintiff has also filed a motion entitled "Motion to Object and Remand Notice of Removal"

("Motion to Remand"), in which he contends that Defendants' Notice of Removal was

procedurally defective. Defendants have opposed this motion, and, on April 2, 2021, Plaintiff

filed a "Motion for Leave to Withdraw Plaintiff's Motion for Objection to Remand," seeking to

withdraw his objections to Defendants' Notice of Removal. Because this case invokes our federal

question jurisdiction, we grant Plaintiff's Motion for Leave to Withdraw and deny as moot his

Motion to Remand.

[the] complaint must contain sufficient factual matter, accepted as true, to state a

claim for relief that is plausible on its face. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Put differently, it is not enough for Plaintiff

to say that he has been illegally harmed. He must also state enough facts in his complaint

to allow the Court to infer the ways in which the named Defendants could be held liable

for the harm alleged.

Thus "a plaintiff must do better than putting a few words on paper that, in the

hands of an imaginative reader, might suggest that something has happened to [him] that

might be redressed by the law." Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.

2010) (emphasis in original). Pro se complaints such as this filed by Plaintiff are

construed liberally and held "to a less stringent standard than formal pleadings drafted by

lawyers." Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal quotation

omitted).

B. The Dismissal of Plaintiff's Original Complaint

Officer Dan Hunkeler was the sole defendant referenced in the body of Plaintiff's

original complaint. Aside from listing the names of the other eight officers as defendants,

Plaintiff's Complaint did not actually accuse them of any wrongdoing. Accordingly, we

ruled that Plaintiff's Complaint must be dismissed against each of these officers.

While Plaintiff's original Complaint mentioned Officer Hunkeler, it nonetheless

fell short in providing sufficient factual details against him. Plaintiff specifically alleged

that, on March 14, 2020, he called 911 in response to an "unwelcomed" and "intoxicated

guest" "being very disruptive in his apartment." We inferred from this allegation that the

guest, identified as Jennifer Moore, was no stranger to Plaintiff. According to Plaintiff,

Ms. Moore's disruptive behavior was violative of his apartment complex's policies as well

as Ms. Moore's "Child Protective Agreement," which required her to abstain from illegal

drugs and substances. Ms. Moore's actions were apparently captured on Officer

Hunkeler's body camera; however, Officer Hunkeler "refus[ed] to investigate" or to

"perform [his] duties at a reasonable level." Asserting that Officer Hunkeler committed

"constitutional rights violations," including the violation of Plaintiff's Fourteenth

Amendment rights, Plaintiff alleged that as consequence he had lost "income, dwelling,

[and] automobile," as well as "parental custody and rights of [his children]."

Having carefully reviewed Plaintiff's Complaint against Officer Hunkeler, we

concluded that it did not comply with Rule 8 of the Federal Rules of Civil Procedure in

that it failed to state a claim showing that Plaintiff is entitled to relief. For example,

Plaintiff's complaint failed to connect Officer Hunkeler to any of the alleged

wrongdoings, including the vaguely alleged property losses. We also informed Plaintiff

that we were unable to remedy his challenges to the revocation of his parental custody

rights:

It is well-established that federal courts do not have subject matter jurisdiction to

adjudicate child custody disputes. Kowalski v. Boliker, 893 F.3d 987, 995 (7th

Cir. 2018). Additionally, a judicial ruling reference to as the Rooker-Feldman

doctrine bars federal district courts from reviewing or overturning a state court's

decisions, including one related to parental custody. Scully v. Goldenson, 751 Fed.

Appx. 905, 908 (7th Cir. 2018); Remer v. Burlington Area Sch. Dist., 205 F.3d

990, 996 (7th Cir. 2000) ("[T]the Rooker–Feldman doctrine bars federal

jurisdiction when the federal plaintiff alleges that her injury was caused by a state

court judgment . . . no matter how erroneous or unconstitutional the state court

judgment may be[.]"). To the extent Plaintiff wishes to contest a ruling related to

his custody rights, he must pursue that claim via appellate review in the state

court.

[Dkt. 9, at 4].

Finally, we rejected Plaintiff's allegations that Officer Hunkeler failed to properly

investigate the grounds for Plaintiff's 911 call, which we interpreted as an attempt to

invoke the Fourteenth Amendment Substantive Due Process Clause. We explained:

[A] police officer's failure to investigate does not give rise to a viable Fourteenth

Amendment Substantive Due Process claim, unless the officer is alleged to have

taken affirmative steps (excluding any failures to act) to create or exacerbate a

danger that harmed the plaintiff. King ex rel. King v. E. St. Louis Sch. Dist. 189,

496 F.3d 812, 817 (7th Cir. 2007); Hernandez v. City of Goshen, 324 F.3d 535,

538, 2003 WL 1698061 (7th Cir. 2003). Here, Plaintiff has not alleged that Officer

Hunkeler took any such affirmative, proactive action. Indeed, once again, the

Complaint is devoid of any allegations describing Plaintiff's interactions with

Officer Hunkeler on March 14, 2020, or otherwise explaining how Officer

Hunkeler responded to the 911 call on this date. Consequently, Plaintiff has not

presented any facts supporting an inference that Officer Hunkeler violated the

Fourteenth Amendment.

[Dkt. 9, at 5].

For these reasons, we concluded that Plaintiff's Complaint as drafted must be

dismissed. We nonetheless provided Plaintiff an opportunity to draft and file an amended

complaint that set out his claims more clearly and thus satisfied Rule 8.

C. Plaintiff's Amended Complaint Must Also Be Dismissed

Plaintiff timely filed his amended complaint, which charges Defendants with

violating Plaintiff's children's Fourteenth Amendment Due Process Rights, participating

in a "conspiracy theory," "manufacturing false inculpatory evidence and unwarranted

search and seizure," and "malicious prosecution." Again, following our careful review,

we find that the amended complaint fails to state any claim upon which relief can be

granted.

With respect to Plaintiff's potential "failure to investigate" claim, the Amended

Complaint reiterates Plaintiff's previous allegations that the officers did not adequately

investigate or respond to his 911 call. He specifically alleges that Defendants, by failing

to properly investigate his call, "turned a blind eye" to the fact that his children's "life and

safety could be in grave danger" because Ms. Moore (who we infer to be the mother of

the children) was caring for them while potentially intoxicated. This failure to properly

investigate and protect the children violated their Fourteenth Amendment Due Process

rights, says Plaintiff.

We begin by noting that there is no allegation in Plaintiff's complaint that his

children were, in fact, in harm's way on the evening of March 14, 2020. Moreover,

Plaintiff's amended complaint lacks claims of any affirmative conduct by which

Defendants created or exacerbated a danger to Plaintiff or his children. As we previously

explained, the Defendants inaction, that is, their failure to investigate, is not enough to

establish their liability for any constitutional violations. Hernandez v. City of Goshen,

Indiana, 324 F.3d 535, 538 (7th Cir. 2003) ("[No matter how egregious [plaintiffs] might

find the City's failure to investigate credible threats of private violence such as the one

posed by Wissman, the City's conduct was not unconstitutional."); id. ("[The City had no

duty to the residents of Goshen to provide a police department whose policy is to

investigate threats of violence, even credible ones, made by private persons and reported

by private persons.). This is the rule even when in the context of claims of abuse of

children. See, e.g.; DeShaney v. Winnebago County Dept. of Social Svcs., 489 U.S. 189,

201 (1989) (holding that social workers who knew or should have known that child’s

father was abusing him yet failed to intervene did not create or exacerbate danger to

child); Windle v. City of Marion, Indiana, 321 F.3d at 660–61 (7th Cir. 2003) (finding no

§ 1983 liability where police officers learned of potential danger to the plaintiff by

listening to conversations between her and her sexual abuser over a police scanner but did

nothing to investigate the situation or to prevent further abuse). Having provided Plaintiff

with the opportunity to amend his complaint to include additional facts supporting this

claim, we now can see that further amendments would be futile.

The remainder of Plaintiff's Amended Complaint focuses on his arrest on March

14, 2020, which led to state criminal charges for aggravated battery posing a substantial

risk, domestic battery by means of a deadly weapon, and domestic battery resulting in

moderate bodily injury. On March 9, 2021, Plaintiff entered a plea of guilty on this

charge of domestic battery resulting in moderate bodily injury. Pursuant to his plea

agreement with state prosecutors, the other charges were dismissed.2

Plaintiff's Amended Complaint asserts that Officer Hunkeler, in the course of

responding to the 911 call, "falsely reported that [he] had blood on [his] dark blue tee-

shirt," made "several false and misleading statements" in a probable cause affidavit, and

"planted" evidence in the form of a "black handle" in Plaintiff's vehicle. This alleged

misconduct from Officer Hunkeler, who was in conspiracy with his fellow officers,

2 We take judicial notice of this state court docket. See State of Indiana v McCray, 34D01-2003-

F3-000840.

allegedly gave rise to the aforementioned criminal charges. Based on these allegations,

Plaintiff advances the following causes of action: "Conspiracy theory" (Count II),

"Manufacturing False Inculpatory Evidence & Unlawful Search and Seizure" (Counts III

& IV), and "Malicious Prosecution." The claims, however, are Heck-barred and therefore

must be dismissed.

Pursuant to the well-established Heck doctrine, a plaintiff who has been convicted

of a crime cannot seek damages under 42 U.S.C. § 1983 for harm "caused by actions

whose unlawfulness would render a conviction or sentence invalid." Heck v. Humphrey,

512 U.S. 477, 486-87 (1994). In order to pursue damages for an allegedly

unconstitutional conviction or imprisonment, a plaintiff must first prove that the

conviction has been reversed, declared invalid, or otherwise dismissed. Id. "A claim for

damages bearing that relationship to a conviction that has not been so invalidated is not

cognizable under § 1983." Id. Accordingly, when a party seeks damages in lawsuits such

as this one:

[T]he district court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff can demonstrate that this

conviction or sentence has already been invalidated. But if the district court

determines that the plaintiff's actions, even if successful, will not demonstrate the

invalidity of any outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed[.]

[Id. at 486-87].

Thus, in such cases, the complaint "must be closely examined in order to

determine whether success would imply the invalidity of an underlying conviction or

sentence." Slaughter v. Rutledge, 2018 WL 1126726, at *6 (C.D. Ill. Mar. 1, 2018).

To the extent Plaintiff seeks to challenge his conviction for domestic battery

resulting in moderate bodily injured on the grounds that his arrest was based on false or

fabricated evidence, that claim is in a non-started because it is Heck-barred. Id. See also

McDonough v. Smith, 139 S. Ct. 2149, 2158 (2019) (holding that allegations of fabricated

evidence "necessarily" question the validity of the conviction).

In addition, to the extent that Plaintiff's claims are tethered to any charges that

were ultimately dismissed (aggravated battery posing a substantial risk and domestic

battery by means of a deadly weapon) pursuant to the plea agreement, we hold that such

claims are also Heck-barred.

Challenges to an arrest which culminated in criminal charges that were eventually

dismissed would not typically be Heck-barred. However, in the circumstances presented

here, Plaintiff does not challenge any aspect of his arrest that is unrelated to or could be

viewed independently from his ultimate conviction for domestic battery resulting in

moderate bodily injury. Slaughter, 2018 WL 1126726, at *7. Put another way, his

arguments and allegations, assuming arguendo that he has anchored them to the

dismissed charges, are so closely intertwined with his guilty plea that success on these

claims would necessarily imply the invalidity of his conviction. Id.; Jordan v. Klamenrus,

2020 WL 4547879, at *2 (N.D. Ill. Aug. 6, 2020) (holding that allegations that officers

had fabricated evidence of a gun were Heck-barred where plaintiff had pled guilty to

reckless discharge of a firearm and the prosecution had dismissed charges for unlawful

possession by a felon and aggravated unlawful use of a weapon nolle prosequi).

If proven, for example, that Officer Hunkeler lied in the probable cause affidavit

regarding his observations of the interactions between Plaintiff and Ms. Moore on the

evening of Plaintiff's arrest, Plaintiff's conviction, in addition to his arrest for the

dismissed charges, would necessarily be called into question. Jordan, 2020 WL 4547879,

at *2. Consequently, Plaintiff's claims cannot proceed here pursuant to Heck. Id. Further,

because these claims are Heck-barred, Plaintiff will not be afforded an opportunity to file

a second amended complaint.

CONCLUSION

Plaintiff's Motion for Leave to Withdraw the Motion for Objection to Remand

[Dkt. 20] is granted; his Motion for Objection to Remand [Dkt. 11] is denied as moot.

Plaintiff's Motion for Assistance with Recruiting Counsel [Dkt. 13] and Motion

for Leave in Support to Compell [sic] Response for Counsel [Dkt. 19] are also denied as

moot.

Defendants’ Motion for Screening [Dkt. 15] is granted. Consistent with the

rulings herein, Plaintiff's Amended Complaint must be dismissed, and Plaintiff shall

not be permitted to further amend his complaint. Final judgment shall now enter.

IT IS SO ORDERED.

Date: 8/4/2021 Poth Gaus Baler

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

10

Distribution:

JOHNEY MCCRAY

40189

Howard County Jail

1800 W. Markland Ave.

Kokomo, IN 46901

Matthew Scott Clark

KNIGHT HOPPE KURNIK & KNIGHT LTD (Rosemont)

mclark@khkklaw.com

Elizabeth Lewandowski

KNIGHT, HOPPE, KURNIK & KNIGHT, LTD.

elewandowski@khkklaw.com