Bowman v. Lexington-Fayette Urban County Housing Authority et al
MEMORANDUM OPINION & ORDER: IT IS ORDERED that (1) Pla's 2 MOTION for Leave to Proceed In Forma Pauperis is GRANTED; (2) Bowman's claims alleging personal property damage and inadequate police protection set forth in her [1 ] Complaint are DISMISSED WITH PREJUDICE; (3) Bowman's construed employment discrimination claims are DISMISSED WITHOUT PREJUDICE; and (4) Court will enter a judgment. Signed by Judge Joseph M. Hood on 06/26/2012.(DAK)cc: COR,Pro Se Pla (via U.S. Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LEXINGTON-FAYETTE URBAN COUNTY )
HOUSING AUTHORITY, et al.,
Civil Case No. 12-cv-196-JMH
Plaintiff Janet Bowman, proceeding without counsel, has filed
a civil rights complaint against the Lexington Fayette Urban County
Kentucky, and the “Lexington Council Government.” [R. 1]
has also filed a motion to waive the $350.00 filing fee based on
her limited income and inability to pay the fee.
The information contained in Bowman's fee motion indicates
that she lacks sufficient assets or income to pay the $350 filing
The Court will therefore waive payment of the fee
pursuant to 28 U.S.C. § 1915(a)(1).
A district court must review any complaint filed in an action
in which pauper status has been granted to determine whether it
fails to state a claim upon which relief can be granted, or if it
LFUCHA owns and operates the Lexington Housing Authority,
which manages and provides affordable public housing funded by the
United States Department of Housing and Urban Development. See
lacks an arguable basis in law or fact.
28 U.S.C. § 1915(e)(2);
Neitzke v. Williams, 490 U.S. 319 (1989); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
federally assisted housing complex.
Bowman alleges that criminal
activity targeted at elderly residents regularly occurs there. She
further indicates that the defendants have damaged and destroyed
her vehicle; entered her apartment and intentionally damaged her
bed and mattress; kept her in poverty and engaged in hate crimes
against her because of her age; refused to employ her because of
her age and the fact that she is "different;" failed to have police
regularly patrol the complex; and failed to control criminal
activity there by installing security cameras.
Beyond alleging these facts, Bowman does not indicate what
violated. The Court liberally construes her complaint, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), as asserting claims pursuant to 42
U.S.C. § 1983 alleging that the defendants violated the Fourteenth
Amendment of the United States Constitution, which prohibits state
officials from (1) violating a citizen’s federal statutory or
constitutional rights; (2) depriving a citizen of life, liberty, or
property, without due process of law; and (3) denying any person
equal protection under the law.
damaged her car, and entered her apartment, damaging her bed and
mattress in the process.
Bowman does not provide the name of any
individually named defendant is Lexington Mayor Jim Gray. Assuming
that Mayor Gray did not personally destroy Bowman’s property, he is
not liable for the actions of his subordinates unless he directly
ordered or encouraged the specific conduct in question.
Grenier, 406 F. App’x 972, 974 (6th Cir. 2011).
Bowman does not
allege that he did so, and the facts as she describes them fail to
state a viable claim for relief.
Nor do her allegations state an actionable claim against
LFUCHA or the “Lexington City Council.”
These entities could only
be liable if they implemented a policy which was “the moving force”
behind a violation of her constitutional rights.
O'Brien v. City
of Grand Rapids, 23 F.3d 990, 1000 (6th Cir. 1994).
identifies no such policy which either permits or condones the
conduct about which she complains.
Instead, Bowman alleges that
the defendants “hate older citizen such as myself who lives in
poverty & work to hard to make it work” [R. 1, p. 6] and that they
have engaged in hate crimes against her because she is “different”
and because she is “an older citizen.”
Such broad and
conclusory allegations are insufficient to state a claim under
Maldowan v. City of Warren, 578 F.3d 351, 390–91
(6th Cir. 2009); Ashcroft v. Iqbal, 556 U.S. 662, 675-676 (2008).
Bowman has therefore failed to allege facts warranting municipal
liability against LFUCHA on this claim.
against her because of her age, is in essence a claim that it has
denied her equal protection under the law. To establish such a
claim, she must show that she is a member of a protected class and
that she was intentionally and purposefully discriminated against
because of her membership in that protected class.
Boger v. Wayne
County, 950 F.2d 316, 325 (6th Cir. 1991). To demonstrate that the
discrimination was purposeful and intentional, Bowman must have
alleged that the LFUCHA has a policy or custom to deprive older
citizens of services, or benefits, while providing such services,
or benefits to other classes, and that age discrimination was the
motivation for this disparate treatment.
Instead, Bowman alleges
only that LFUCHA simply does not like elderly people, a claim
insufficient to establish an equal protection violation.
Atlantic v. Twombly, 550 U.S. 544, 555–57 (2007).
Bowman also alleges that LFUCHA has denied her employment
opportunities because of her age, although she provides no factual
basis for this assertion. Before a plaintiff may assert a claim of
age discrimination in employment pursuant to the Age Discrimination
in Employment Act (“ADEA”) of 1967, § 2 et seq., 29 U.S.C. § 621 et
seq., she must first submit it to the Equal Employment Opportunity
Office (“EEOC”) for administrative exhaustion. Her construed claim
on this issue will be dismissed without prejudice in order to
afford her the opportunity to exhaust it administratively prior to
Bowman finally claims that the defendants are liable to her
because they failed to provide adequate police protection for her
housing complex, resulting in acts of vandalism perpetrated by
persons unknown. These allegations fail to state a claim of a
affirmative duty to protect its citizens from private acts of
violence. DeShaney v. Winnebago County Dep't of Social Servs., 489
individual against private violence simply does not constitute a
Louisville, 120 F. Appx. 566, 572 (6th Cir. 2004); see also
Zebrasky v. Ohio Dept. of Transp., 477 N.E.2d 218 (Ohio App. 1984)
(“[p]olice protection is a duty owed to the public as a whole but
not to any individual member”).
Accordingly, IT IS ORDERED that:
Plaintiff Janet Bowman’s motion to proceed in forma
pauperis [R. 2] is GRANTED;
Bowman’s constitutional claims alleging personal property
damage and inadequate police protection in her housing complex,
set forth in her Complaint [R. 1] are DISMISSED WITH PREJUDICE;
Bowman’s construed employment discrimination claims under
the ADEA are DISMISSED WITHOUT PREJUDICE; and
The Court will enter an appropriate Judgment.
This June 26, 2012.