Plaintiff never files second page of application, suit against Huntington PD dismissed

By Kyla Asbury | Oct 17, 2013

HUNTINGTON - A lawsuit against the Huntington Police Department for alleged wrongful imprisonment has been dismissed from federal court.

Officer Ronnie Lusk, Lieutenant Williams and the City of Huntington were also named as defendants in the suit.

On Aug. 31, 2012, the plaintiff filed a petition for appointment of counsel and on Jan. 25, U.S. Magistrate Judge Cheryl A. Eifert issued a memorandum opinion and order after the court had ordered the plaintiff on Oct. 11, 2012, to file a completed application of to proceed in forma pauperis, which would waive filing fees.

On June 10, an order was filed in the U.S. District Court for the Southern District of West Virginia at Huntington stating that the plaintiff was instructed to complete and submit the second page of the in forma pauperis application, given that the application was filed without the second page. The plaintiff did not submit the second page of the application.

In January, U.S. Magistrate Judge Cheryl A. Eifert learned that the plaintiff had been released from jail and, accordingly, the court issued a second order instructing him to resubmit the in forma pauperis application or pay the filing fee, and he was notified that failure to do either might result in a recommendation that his action be dismissed. However, he failed to comply with the order.

Due to his failure to comply with the orders, Eifert recommended dismissal of his action 30 days from the date June 10 order if the plaintiff did not pay the filing fee or submit an updated in forma pauperis application demonstrating his inability to pay the filing fee and costs.

On Sept. 20, Eifert recommended the application to proceed in forma pauperis be denied, the motion for the appointment of counsel be denied and the complaint be dismissed without prejudice.

"A review of the docket indicates that plaintiff received all of the orders issued...but failed to take the steps necessary to litigate his claims," the recommendation states.

On Oct. 11, District Judge Robert C. Chambers issued a memorandum opinion and order upholding Eifert's recommendations and dismissed the complaint without prejudice.

On Sept. 8, 2011, Kenard Moore was arrested for being a convicted felon with a firearm, according to a complaint filed Aug. 27, 2012, in the U.S. District Court for the Southern District of West Virginia at Huntington.

Moore claimed the incident occurred when there was a "shoot out" involving his family and the person that was with him had a firearm, but refused to use it.

Because the person with the firearm would not use it, Moore took it from him and used it to "save [his] family and [his] life, as well," according to the suit.

Moore claimed he was arrested and given a 10-month sentence "without a cause" and was later indicted for violating U.S. Code, so he took the matters to trial in federal court and was found "not guilty under a state and federal law saying [he] had the right to bare a fire arm."

The Huntington Police Department violated Moore's right by not doing its job and putting him in jail for 10 months, away from his family, the complaint stated.

Moore was seeking $800,000 for pain and suffering and for violating his civil rights. He was also seeking for future medical bills arising from the matter. He was representing himself.

U.S. District Court for the Southern District of West Virginia at Huntington case number: 3:12-cv-04714

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