# MCCRAY v. DETAMORE

> District Court, S.D. Indiana · August 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10168126

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** August 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10168126

## How later opinions describe it (automated extraction)

- holding that allegations of fabricated evidence "necessarily" question the validity of the conviction

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10168126. Public record. Not legal advice.