Perez v. Simpson et al

Filing 7

MEMORANDUM OPINION AND ORDER by Chief Judge Greg N. Stivers on 1/7/2019. Within 30 days from the entry date of this Memorandum Opinion and Order, Plaintiff may file an amended complaint on a Court-supplied form titled "Complaint for Violati on of Civil Rights." Therein, Plaintiff must indicate whether she sues Defendants in their individual or official capacity or in both capacities, and she must provide specific facts surrounding her claims and describe the wrongdoing allegedl y committed by each named Defendant. The Clerk of Court is DIRECTED to place the word "Amended" and the instant case number on a "Complaint for Violation of Civil Rights (Non-Prisoner Complaint)" form (AO Form Pro Se 15) and send it to Plaintiff for her completion. cc: Plaintiff, pro se (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION

LARHONDA DUNLAP PEREZ
v.

PLAINTIFF
CIVIL ACTION NO. 1:18-CV-64-GNS

OFFICER B. SIMPSON CPD #415 et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiff LaRhonda Dunlap Perez filed a pro se civil action on a general complaint form
titled “Complaint for a Civil Case.” Therein, she sues the Campbellsville Police Department and
its Officers B. Simpson and Josh Patrick and the Taylor County Detention Center and its Nurse
Fallon Milby. As her statement of the claim, Plaintiff alleges, “I was refused medical treatment
after being tased. I have had surgery and been to two different hospitals and still having surgery.
I am deformed on one side. I was denied until the net day.” In the relief section of the form,
Plaintiff writes: “medical bills, transportation for appoints pain sufferng; punitive, exemplary,
negligence slander.”
Because Plaintiff is proceeding in forma pauperis, the Court must review the complaint
under 28 U.S.C. § 1915(e). McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). On review, 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).
Additionally, federal district courts are courts of limited jurisdiction, and their powers are
enumerated in Article III of the Constitution and in statutes enacted by Congress. Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); see generally, 28 U.S.C. §§ 1330-1364.
Therefore, “[t]he first and fundamental question presented by every case brought to the federal
courts is whether it has jurisdiction to hear a case, even where the parties concede or do not raise
or address the issue.” Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 606-07 (6th Cir.
1998). Without jurisdiction, courts have no power to act. Id. at 606. The burden of establishing
jurisdiction rests with the plaintiff. Hedgepeth v. Tenn., 215 F.3d 608, 611 (6th Cir. 2000);
Douglas, 150 F.3d at 606. There are two ways a federal district court may have jurisdiction over
a case. Douglas, 150 F.3d at 607. One way is through diversity jurisdiction under 28 U.S.C.
§ 1332, and another way is through federal-question jurisdiction under 28 U.S.C. § 1331.
Under the diversity-jurisdiction statute, “[t]he district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between—(1) citizens of different States[.]”.
28 U.S.C. § 1332(a). “[D]iversity jurisdiction does not exist unless each defendant is a citizen of
a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373
(1978). Here, Plaintiff has not alleged that she is diverse in citizenship from Defendants and,
therefore, fails to establish diversity jurisdiction.
Under the federal-question statute, “[t]he district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Here, Plaintiff specifically mentions negligence and slander, which are state-law claims
that do not arise “under the Constitution, laws, or treaties of the United States.” In liberally
construing the complaint in a light most favorable to the pro se Plaintiff, however, it appears that
she also may be attempting to allege federal constitutional violations against the municipal

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Defendants under 42 U.S.C. § 1983. See, e.g., Vistein v. Am. Registry of Radiologic
Technologists, 342 F. App’x 113, 127 (6th Cir. 2009) (“To proceed on a claim under 42 U.S.C.
§ 1983, a plaintiff must show that a person acting under color of state law deprived the plaintiff
of a right secured by the Constitution or laws of the United States.”); Thomas v. Shipka, 818 F.2d
496, 499 (6th Cir. 1987) (“[I]n cases where a plaintiff states a constitutional claim under 42
U.S.C. § 1983, that statute is the exclusive remedy for the alleged constitutional violations.”),
vacated and remanded on other grounds, 488 U.S. 1036 (1989).
Even liberally construing the complaint as asserting § 1983 claims, the complaint fails to
contain sufficient facts to state a federal claim against Defendants, see Scheid v. Fanny Farmer
Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) ( “[A] . . . complaint must contain either
direct or inferential allegations respecting all the material elements to sustain a recovery under
some viable legal theory.”) (citations and internal quotation marks omitted), or to place
Defendants on notice as to any federal claim against them. See Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002) (indicating that the short and plain statement of a claim must “‘give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests’”)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other grounds by Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)). 550 U.S. 544). “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, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556). “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.’” Id. (quoting
Twombly, 550 U.S. at 555, 557). Conclusory allegations or bare legal conclusions will not
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suffice as factual allegations. Followell v. Mills, 317 F. App’x 501, 505 (6th Cir. 2009)
(“Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice.”); Gregory v. Shelby Cty., Tenn., 220 F.3d 433, 446 (6th Cir. 2000) (“[W]e need not
accept as true legal conclusions or unwarranted factual inferences.”). The complaint, therefore,
fails to state a claim upon which relief may be granted.
Before dismissing the action, however, the Court will provide Plaintiff with an
opportunity to file an amended complaint specifically describing the alleged wrongdoing
committed by each named Defendant.
IT IS THEREFORE ORDERED that within 30 days from the entry date of this
Memorandum Opinion and Order, Plaintiff may file an amended complaint on a Courtsupplied form titled “Complaint for Violation of Civil Rights.” Therein, Plaintiff must
indicate whether she sues Defendants in their individual or official capacity or in both
capacities, and she must provide specific facts surrounding her claims and describe the
wrongdoing allegedly committed by each named Defendant.
The Clerk of Court is DIRECTED to place the word “Amended” and the instant case
number on a “Complaint for Violation of Civil Rights (Non-Prisoner Complaint)” form
(AO Form Pro Se 15) and send it to Plaintiff for her completion.
Plaintiff is WARNED that her failure to comply within the time allotted will result in
dismissal of the action for the reasons set forth in this Memorandum Opinion and Order.
Date:

January 7, 2019

cc:
Plaintiff, pro se
4416.005
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