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Kelley v. Watts

October 31, 2007

MICHAEL C. KELLEY PLAINTIFF
v.
JOSEPH DANIEL WATTS DEFENDANT



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is pro se Plaintiff's Motion for Leave to Proceed In Forma Pauperis (Doc. No. 1).

Because Plaintiff's economic situation qualifies him for In Forma Pauperis status, Plaintiff's Motion to Proceed In Forma Pauperis (Doc. No. 1) is GRANTED.

However, under 28 U.S.C. § 1915(e)(2)(B), a court may dismiss a complaint filed in forma pauperis at any time if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.*fn1 A complaint fails to state a claim upon which relief can be granted when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."*fn2 A complaint may be dismissed before service of process and without leave to amend.*fn3 Although pro se complaints are to be liberally construed, "they still must allege sufficient facts to support the claims advanced."*fn4

Plaintiff states in his Complaint that Defendant visited Plaintiff's house twice on Sunday, March 25, 2007.*fn5 On the first visit to Plaintiff's house, Defendant "allegedly as an act of friendship" delivered to Plaintiff a pile of old lumber that Defendant offered Plaintiff for the building of a fence.*fn6 During the second visit to Plaintiff's house, Defendant, who Plaintiff asserts is a paid informant for the Van Buren County Sheriff's Department, purportedly "badgered and induced" Plaintiff into buying one ounce of Mexican marijuana.*fn7 Plaintiff wrote Defendant a check for the purchase price of the marijuana.*fn8 The following day, allegedly because of Defendant's "clandestine and nefarious interaction with members of the Van Buren Sheriff's Department and others," Van Buren County Sheriffs Deputies, a narcotics officer, Van Buren County Chief Investigator Murray, and an Arkansas State Police Trooper arrived at Plaintiff's house with an arrest warrant and, after finding the marijuana Defendant sold Plaintiff, arrested Plaintiff.*fn9 Plaintiff was taken to jail and later released on bond.*fn10 Plaintiff invokes jurisdiction under 42 U.S.C. §§ 1982, 1983, and alleges Defendant, acting under color of law, caused Plaintiff to be illegally arrested.*fn11 Plaintiff's Complaint includes the following causes of action:

(1) a violation of 18 U.S.C. § 242; (2) a violation of 18 U.S.C. § 1961; (3) a violation of the Controlled Substances Act; and (4) a violation of 18 U.S.C. § 1343.*fn12

I. 42 U.S.C. § 1982

"All citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property."*fn13

Considering the facts in the record and the wording of this statute, this section of the United States Code is not applicable to this case and relief can not be granted under this statute.

II. 42 U.S.C. § 1983

Pro se complaints should be construed liberally.*fn14 However, the court "is not required to assume facts not alleged or to construct legal theory that assumes facts not pleaded."*fn15 To establish a right to relief under 42 U.S.C. § 1983 for an illegal arrest by one acting under color of law, a plaintiff must prove that (1) he was deprived of a right "secured by the Constitution and laws" of the United States, and (2) the defendant deprived him of his rights while acting under color of law.*fn16

Plaintiff alleges that he was arrested illegally. In his Complaint, Plaintiff states that he was arrested by law enforcement officials pursuant to an arrest warrant. There is nothing in the record alleging that the warrant was invalid, questioning probable cause, or challenging the warrant otherwise. There are no facts provided supporting a conclusion of an unauthorized search or seizure. Plaintiff asserts that he was illegally arrested because Defendant, a police informant, "maliciously and oppressively" acted in selling Plaintiff the marijuana.*fn17 It appears to me that Plaintiff is trying to claim that he was entrapped by Defendant's and other officials' actions.

To succeed in claim of entrapment, "the evidence must clearly show the government agent developed the criminal plan and that the defendant was not predisposed to commit the crime independent of the government's activities."*fn18

There is insufficient evidence in the record to "clearly show" that a government agent developed a criminal plan and that Defendant was not predisposed to purchasing the marijuana. As set out in the Complaint, Plaintiff, not having cash, wrote Defendant a check for the marijuana. Indeed, one could surmise that a person willing to ...


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