Ferguson v. Louisville Metro Police et al, No. 3:2010cv00529 - Document 4 (W.D. Ky. 2010)
Court Description: MEMORANDUM OPINION AND ORDER signed by Judge John G. Heyburn, II on 8/16/2010 GRANTING 3 Motion for Leave to Proceed in forma pauperis. For the reasons set forth, the Court will dismiss the instant action by separate order. cc: Plaintiff, pro se (AEP) Modified on 8/16/2010: changed document type to "opinion" (AEP).
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:10CV-529-H JAMES CALVIN RODGERS FERGUSON PLAINTIFF v. LOUISVILLE METRO POLICE et al. DEFENDANTS MEMORANDUM OPINION AND ORDER Plaintiff James Calvin Rodgers Ferguson filed a pro se complaint. He also filed an application to proceed without prepayment of fees (DN 3), which is GRANTED. Because Ferguson is proceeding in forma pauperis, this Court must review the complaint pursuant to 28 U.S.C. § 1915(e)(2) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the complaint will be dismissed. I. Ferguson brings his action pursuant to 42 U.S.C. § 1983. As Defendants, he names: the Louisville Metro Police, Public Defenders Advocacy, and the Sheriff s Department, seeking monetary and punitive damages; damages for pain, stress, embarrassment, humiliation, and intent to cause maiming and death; and expungement of all charges brought against him since 2007. Ferguson alleges that since 2007, unspecified officers have harassed him, sexually and physically assaulted him, and stolen his property. He asks the Court to check his background record, which will show that he had never been in this much trouble before. In the complaint, however, Ferguson only complains of one specific incident on an unspecified date. He advises that he was going into T-Mobile at Fourth Street Live when two corrections pass by and made racial slurs. Ferguson reports that he tried to walk away but was constantly being watched by the officers when one finally gave me a hand jesture and so did i. The officers then ran down the escalator and arrested Ferguson for DC (presumably disorderly conduct) when they were the ones to provoke him. II. Upon review of a complaint 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. 2 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). 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). A. Louisville Metro Police and Sheriff s Department The Louisville Metro Police and the 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 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. 3 When a § 1983 claim is made against a municipality, the 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). The Court will address the issues in reverse order. 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). [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, 436 U.S. at 691; Deaton v. Montgomery County, Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability, a plaintiff must (1) identify the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his particular injury was incurred due to execution of that policy. Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police Dep t, 8 F.3d 358, 364 (6th Cir. 1993)). Where a government custom has not received formal approval through the body s official decisionmaking channels, such a custom may still be the subject of a § 1983 suit. Alkire, 330 F.3d at 815 (quoting Monell, 436 U.S. at 690-91). The policy or custom must be the moving 4 force of the constitutional violation in order to establish the liability of a government body under § 1983. Searcy, 38 F.3d at 286 (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981) (citation omitted)). In the instant case, Ferguson has not alleged that any officer acted pursuant to a municipal policy or custom in causing his alleged harm, and nothing in the complaint demonstrates that any officer s action 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 against the Louisville Metro Government. B. Public Defenders Advocacy While the Court is aware of its duty to construe pro se complaints liberally, Ferguson 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). Ferguson 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. ). Accordingly, the claims against the Public Defenders Advocacy must be dismissed for failure to state a claim upon which relief may be granted. 5 For all of the foregoing reasons, the Court will dismiss the instant action by separate Order. Date: August 16, 2010 cc: Plaintiff, pro se 4412.005 6
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