Ferguson v. Louisville Metro Police et al, No. 3:2010cv00449 - Document 5 (W.D. Ky. 2010)
Court Description: MEMORANDUM OPINION signed by Judge John G. Heyburn, II on 10/13/2010. For the reasons set forth, the instant action will be dismissed by separate Order. cc: Plaintiff, pro se (AEP)
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Ferguson v. Louisville Metro Police et al Doc. 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:10CV-449-H JAMES CALVIN RODGERS FERGUSON PLAINTIFF v. LOUISVILLE METRO POLICE et al. DEFENDANTS MEMORANDUM OPINION Plaintiff James Calvin Rodgers Ferguson filed a pro se complaint. Because Plaintiff is proceeding in forma pauperis, this Court must review the complaint pursuant to 28 U.S.C. § 1915(e)(2). See McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). For the reasons that follow, the complaint will be dismissed. I. Plaintiff brings his action pursuant to 42 U.S.C. § 1983 against the Louisville Metro Police, the Sheriff’s Department, and “Public Defenders Advocacy.” Plaintiff claims that since 2007, he has been harassed and physically and sexually assaulted by arresting officers, sheriffs, and corrections officers. Plaintiff additionally alleges that his property was stolen. He claims that he had a “large Black bag with contents of high value [] currency when [he] was arrested on Jan 2, 2010.” He advises that there is a 90-day retention policy for inmates’ property but advises that “when I was release April 22, 2010 They said property was Deposed of April 2, 2010 when 90 day policy shouldn’t go in to efect until inmate is released.” Plaintiff finally alleges that generally he was misrepresented in court and more specifically that he was misrepresented in court “for mental evaluations when none was need[ed] at all.” He alleges “all occurred at Jewish hospital in ER trying to be seen.” Dockets.Justia.com As relief, Plaintiff requests damages and expungement of all charges since 2007. II. Upon review under 28 U.S.C. § 1915(e), a district court must dismiss a case at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, -- U.S. -- , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “[A] district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). “But the district court need not accept a ‘bare assertion of legal conclusions.’” Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 557). 2 Although this Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519 (1972), the duty “does not require us to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the Court “to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). III. “Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere.” Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Absent either element, no § 1983 claim exists. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). A. Louisville Metro Police and Sheriff’s Department Louisville Metro Police and Sheriff’s Department are not “persons” subject to suit under § 1983 because municipal departments, such as jails, are not suable under § 1983. Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir.1991) (holding that a police department may not be sued under § 1983); see also Marbry v. Corr. Med. Servs., No. 99-6706, 2000 WL 1720959, at *2 (6th 3 Cir. Nov. 6, 2000) (holding that a jail is not an entity subject to suit under § 1983). The municipality is the proper defendant – in this case, Louisville Metro Government. When a § 1983 claim is made against a municipality, this Court must analyze two distinct issues: (1) whether Plaintiff’s harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.’” City of St. Louis v. Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479-480 (1986)) (emphasis in original). A municipality cannot be held responsible for a constitutional deprivation unless there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Deaton v. Montgomery County, Ohio, 989 F.2d 885, 889 (6th Cir. 1993). Simply stated, the plaintiff must “identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 363-64 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds by Frantz v. Village of Bradford, 245 F.3d 869 (6th Cir. 2001)). Plaintiff contends that Louisville Metro Corrections has a 90-day property retention policy. However, because he alleges that the policy was not followed, he has not shown that his injury was caused by the execution of a municipal policy, and the Louisville Metro Government cannot be liable under § 1983. 4 Furthermore, Plaintiff has not demonstrated a constitutional violation as to his claim of stolen property. The Supreme Court has held that where adequate remedies are provided by state law, the negligent or intentional loss or destruction of personal property does not state a claim cognizable under the Due Process Clause of the Fourteenth Amendment. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). In order to assert a constitutional claim for deprivation of property, a plaintiff must allege that the state post-deprivation procedures are inadequate to remedy the deprivation. See Parratt, 451 U.S. at 543-44. The law of this Circuit is in accord. For example, in Vicory v. Walton, 721 F.2d 1062 (6th Cir. 1983), the court held that “in § 1983 damage suits claiming the deprivation of a property interest without procedural due process of law, the plaintiff must plead and prove that state remedies for redressing the wrong are inadequate.” Id. at 1066. The Sixth Circuit has found that Kentucky’s statutory remedy for such losses is adequate within the meaning of Parratt. See Wagner v. Higgins, 754 F.2d 186, 191-92 (6th Cir. 1985). Thus, Plaintiff’s claim concerning his stolen property fails to state a claim upon which relief may be granted and must be dismissed. Plaintiff additionally alleges that he has been harassed and/or assaulted by unidentified police, corrections, and sheriff’s officers on unspecified dates and under unspecified circumstances. A municipality, however, “cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir. 1994). Plaintiff has not alleged that any of the municipal officers acted pursuant to a municipal policy or custom in 5 causing his alleged harm, and nothing in the complaint demonstrates that their actions occurred as a result of a policy or custom implemented or endorsed by the Louisville Metro Government. Consequently, the complaint fails to establish a basis of liability against the municipality and fails to state a cognizable § 1983 claim. B. “Public Defenders Advocacy” While the Court is aware of its duty to construe pro se complaints liberally, Plaintiff is not absolved of his duty to comply with the Federal Rules of Civil Procedure by providing Defendant with “fair notice of the basis of [his] claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Plaintiff alleges no facts involving the “Public Defenders Advocacy” and, therefore, does not give that Defendant fair notice of his claims against it and the grounds upon which they rest. Further, it is firmly established that a defense attorney, regardless of whether he is a public defender or private attorney, is not a state actor for purposes of § 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”); Otworth v. Vanderploeg, 61 F. App’x 163, 165 (6th Cir. 2003) (“A lawyer representing a client is not, by virtue of being an officer of the court, a state actor under color of state law within the meaning of § 1983.”). Accordingly, the claims against the “Public Defenders Advocacy” must be dismissed for failure to state a claim upon which relief may be granted. 6 For the foregoing reasons, the instant action will be dismissed by separate Order. Date: October 13, 2010 cc: Plaintiff, pro se 4412.005 7
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