DORSEY v. CITY OF INDIANAPOLIS et al

Filing 48

ORDER - In sum, Mr. Dorsey's 42 U.S.C. § 1983 claim against Ms. Frederick for her personal involvement with the allegedly excessive damage to his property shall proceed. All other claims in this action are dismissed, and the Clerk is direc ted to terminate all Defendants other than Ms. Frederick as parties on the docket. Counsel has already appeared on behalf of Ms. Frederick and shall have 21 days to file an answer or other responsive pleading to the Fourth Amended Complaint, consistent with the Federal Rules of Civil Procedure. SEE ORDER. Copy sent to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 4/20/2017.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VICTOR DORSEY, JR.,

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Plaintiff,
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vs.
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CITY OF INDIANAPOLIS,
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HEALTH AND HOSPITAL CORPORATION )
OF MARION COUNTY,
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MARION COUNTY PUBLIC HEALTH
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DEPARTMENT,
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KRISTEN FREDERICK,
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INDIANAPOLIS METROPOLITAN POLICE )
DEPARTMENT,
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MARK NOTTINGHAM Real Estate
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Investor/Speculator for Nottingham Realty Co., )
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Defendants.
)

No. 1:16-cv-01435-JMS-DML

ORDER
Pro se Plaintiff Victor Dorsey, Jr., filed a Complaint in federal court in June 2016, alleging
claims related to his property on Bellefontaine Street in Indianapolis. [Filing No. 1 at 3-4.] The
Court has allowed Mr. Dorsey to proceed in forma pauperis, [Filing No. 5], and he has been given
multiple chances to plead his claims in response to various Defendants’ dispositive motions
regarding the sufficiency of his pleadings, [see, e.g., Filing No. 27; Filing No. 46]. Most recently,
on March 27, 2017, the Court issued an Order in response to various motions concluding that
“pursuant to the interests of justice, Mr. Dorsey shall have one final chance to set forth sufficient
allegations showing that there is a basis for this Court’s jurisdiction and that he has a claim entitling
him to relief.” [Filing No. 46 at 4 (original emphasis).] The Court noted that Defendants did not
need to immediately answer or otherwise respond to Mr. Dorsey’s anticipated complaint because
the Court would first exercise its discretion to screen it pursuant to 28 U.S.C. § 1915. [Filing No.

46 at 4.] Mr. Dorsey filed his Fourth Amended Complaint on April 11, 2017, [Filing No. 47], and
the Court will now screen it as indicated.
28 U.S.C. § 1915(e)(2)(B) directs the Court to dismiss a complaint or claim within a
complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. To state a viable claim, the complaint “must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. . . . 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.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quotations omitted). Pro se complaints such as
that filed by Mr. Dorsey, are construed liberally and held to a less stringent standard than formal
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Obriecht v. Raemisch,
517 F.3d 489, 491 n.2 (7th Cir. 2008).
Mr. Dorsey alleges that Defendants violated 42 U.S.C. § 1983, as well as his rights to due
process under the Fourth, Fifth, and Fifteenth Amendments of the United States Constitution.
[Filing No. 47 at 3.] Specifically, his Fourth Amended Complaint and the attached documents
allege that Defendants unreasonably and excessively damaged his property after a state court judge
issued orders regarding property taxes, fees, and fines certified from Health and Hospital
Corporation and Marion County Public Health Department. [Filing No. 47; Filing No. 47-1.]
Many of Mr. Dorsey’s allegations focus on the conduct of Kristin Frederick, who he alleges is a
code enforcement employee with the Marion County Public Health Department. [Filing No. 47;
Filing No. 47-1.]
The Court has already made the following rulings and observations while addressing
previous motions filed in this action:
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Many of Mr. Dorsey’s claims are barred by the Rooker-Feldman doctrine to the
extent they are based on Defendants entering his property pursuant to two state
court orders and using reasonable and necessary force to carry out those orders.
“Put another way, because of the Rooker-Feldman doctrine, this federal court
cannot review or overrule the state court’s orders allowing Health and Hospital
Corporation and its contractors to enter Mr. Dorsey’s property and use reasonable
and necessary force to carry out those orders.” [See Filing No. 27 at 2-6.] The
Court has already dismissed those claims. [Filing No. 27.]

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Mr. Dorsey cannot pursue any tax-related claims in this litigation because they are
barred by either the Rooker-Feldman doctrine or the Tax Injunction Act. [Filing
No. 27 at 6-7 (citing 28 U.S.C. § 1341).] [Filing No. 27 at 6-7.]

The Court has dismissed those claims.
After reviewing Mr. Dorsey’s Fourth Amended Complaint, the Court concludes that it
states a claim for relief pursuant to 42 U.S.C. § 1983 against Kristin Frederick for her direct
involvement in the alleged excessive damage to Mr. Dorsey’s property in executing the state court
orders. A claim of this nature is not barred by the Rooker-Feldman doctrine because it is
independent of the state court orders themselves and does not ask this Court to overrule them. See,
e.g., Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 646 (7th Cir. 2011) (holding that
the district court correctly concluded that Rooker-Feldman applied to claims that a “foreclosure
and eviction deprived [plaintiffs] of their fundamental fairness and equal protection rights” but did
not apply to claims about “injury caused by the defendants’ actions in enforcing the judgment”).
While it is possible that Mr. Dorsey’s claim against Ms. Frederick will not ultimately succeed, he
has alleged sufficient personal involvement on her part to state a claim against her pursuant to 42
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U.S.C. § 1983. See Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir. 2003) (emphasizing that
“[i]ndividual liability under 42 U.S.C. § 1983 can only be based on a finding that the defendant
caused the deprivation at issue” and distinguishing between personal involvement and a
supervisory role). Accordingly, Mr. Dorsey’s § 1983 claim against Ms. Frederick will proceed.
Mr. Dorsey’s claims against the City of Indianapolis, Health and Hospital Corporation of
Marion County, Marion County Public Health Department, and the Indianapolis Metropolitan
Police Department must be dismissed because he does make sufficient allegations against those
entities to pursue a claim against them pursuant to 42 U.S.C. § 1983. See Glisson v. Ind. Dep’t of
Corrections, 849 F.3d 372, 379 (7th Cir. 2017) (emphasizing that the critical question for a § 1983
claim against an entity is “whether a municipal (or corporate) policy or custom gave rise to the
harm (that is, caused it)”) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690
(1978)). Mr. Dorsey does not contend that the allegedly excessive property damage of which he
complains was the result of a policy or custom of these Defendants to unreasonably execute orders
of this nature. Accordingly, Mr. Dorsey’s federal claims against the City of Indianapolis, Health
and Hospital Corporation of Marion County, Marion County Public Health Department, and the
Indianapolis Metropolitan Police Department are dismissed.
Mr. Dorsey’s federal claims against Mark Nottingham must also be dismissed. Mr. Dorsey
lists Mr. Nottingham in the caption of his Fourth Amended Complaint but does not list him in the
Statement of his Claim. [Filing No. 47 at 2.] More importantly, the attachments to his Fourth
Amended Complaint confirm that Mr. Nottingham is a private realtor—as opposed to a state
actor—employed by Nottingham Realty. [Filing No. 47-1.] To succeed on a § 1983 claim, a
plaintiff must prove that he was deprived of a right secured by the Constitution or federal law, and
that the defendant was “acting under color of state law.” Armato v. Grounds, 766 F.3d 713, 7194

20 (7th Cir. 2014). Mr. Dorsey has not alleged that Mr. Nottingham was acting under color of
state law and, in fact, his allegations confirm that he was not. For that reason, Mr. Dorsey’s federal
claims against Mr. Nottingham are dismissed.
In sum, Mr. Dorsey’s 42 U.S.C. § 1983 claim against Ms. Frederick for her personal
involvement with the allegedly excessive damage to his property shall proceed. All other claims
in this action are dismissed, and the Clerk is directed to terminate all Defendants other than Ms.
Frederick as parties on the docket. Counsel has already appeared on behalf of Ms. Frederick and
shall have 21 days to file an answer or other responsive pleading to the Fourth Amended
Complaint, consistent with the Federal Rules of Civil Procedure.

Date: April 20, 2017

Distribution via US Mail:
VICTOR DORSEY, JR.
P.O. Box 1212
Indianapolis, IN 46206
Electronic Distribution via CM/ECF:
Gregory J. Ullrich
HEALTH AND HOSPITAL CORP. OF MARION CO.
[e-mail]
Andrew J. Upchurch
OFFICE OF CORPORATION COUNSEL
[e-mail]
Pamela G. Schneeman
OFFICE OF CORPORATION COUNSEL
[e-mail]
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