Zitter v. Denhler et al
Filing
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MEMORANDUM OPINION AND ORDER signed by Judge Charles R. Simpson, III on 5/25/2011. Plaintiff's 5 Application to proceed without prepayment of fees is GRANTED. For the reasons set forth, action will be dismissed. A separate Order of dismissal will be entered consistent with this Memorandum Opinion. cc: Plaintiff, pro se (RLK) Modified on 5/26/2011: change from a standard document to an opinion (RLK).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11CV-279-S
DAVID R. ZITTER
PLAINTIFF
v.
DORTHY DENHLER et al.
DEFENDANT
MEMORANDUM OPINION AND ORDER
Plaintiff David R. Zitter filed a pro se complaint under 42 U.S.C. § 1983. Plaintiff also
filed an application to proceed without prepayment of fees. IT IS ORDERED that the
application to proceed without prepayment of fees (DN 5) is GRANTED. Since Plaintiff is
proceeding in forma pauperis, this Court must review the instant action pursuant to 28 U.S.C.
§ 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth
herein, the instant action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff filed this action on a court-supplied § 1983 complaint form. As Defendants
Plaintiff names Dorthy Denhler and rest of Family, Judge Bathmellow, Judge Collons, Baraba
Orr, and Seven Counties.1 While the complaint is not entirely clear, Plaintiff complains about an
October 2009 court hearing. He states: “I was told I had to be in only 30 day on my midemenor
charge by clients. Also I did not sign any papers on Oct 15 or July 1 2010 with Seven Counties
or nor was I handed papers pink slip when I was release by the court on July 1 2010.” He also
states:
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Plaintiff actually lists these parties as Plaintiffs in the complaint caption. However, it is
clear he intends to name them as Defendants.
This court hearing is all verbal games of mind terror on my plea
(guilty) it has no diversion or community service . . . check the
commonwealth attorney office why do they play mind terror I
show my slips to the Judges (Collons and Bathmellow) try to ask
them my defense in 104 Then Collon said Tia Jenkins set me up
tired of mind bending at 104 & 308.
...
I upset Dr Harrison accuse me of homosexual behavor insults I do
not do this evil behavior no my life style of choice ever because of
my religious believe of Roman Catholic Chasity rights. I just a
abuse gifted human being by my family because of my religious
belief since youth. I have been insulted by mental health which
has bill me my Humana Part C & D and tried to bill Medicare
even. I do not believe my money should pay any medical service .
. . Was set up by vicious acts of harassment and humiliation by
private citizens and county courts.
To his complaint Plaintiff attaches a Jefferson District Court agreed order to set aside
conviction upon completion of mental health enhanced supervision, an order of conditional
release, and a Seven Counties Services, Inc. psychiatric evaluation of him dated December 1,
2009.
II. ANALYSIS
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, this Court must
dismiss a case at any time if it determines that an 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. See 28 U.S.C. § 1915(e)(2)(B).
The 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 to be
less stringent with pro se complaints, however, “does not require [the Court] to conjure up
unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted), and
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the Court is not required to create a claim for a pro se plaintiff. Clark v. Nat’l Travelers Life Ins.
Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the “courts 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).
A.
Denhler, Orr, and family members
The complaint makes no reference to Dorthy Denhler or Baraba Orr. It states no facts
regarding personal involvement by these Defendants. While the Court has a 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 Defendants with “fair notice of the basis for his claims.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Because Plaintiff has not alleged any
facts involving Denhler or Orr, the complaint fails to state any claims for relief against them, and
the claims against these Defendants will be dismissed.
Plaintiff included “rest of family” in his list of Defendants. Plaintiff makes a reference to
being abused by his family. Section 1983 has two basic requirements: (1) the deprivation of
federal statutory or constitutional rights by (2) a person acting under color of state law. See West
v. Atkins, 487 U.S. 42, 48 (1988); Flint v. Ky. Dep’t of Corr., 270 F.3d 340, 351 (6th Cir. 2001).
Absent either element, no § 1983 claim exists. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.
1991). The United States Constitution does not apply to the conduct of private entities or
persons; it applies to conduct by the government. Edmonson v. Leesville Concrete Co., Inc., 500
U.S. 614, 620 (1991). Plaintiff’s family members are presumably private citizens, and the
complaint does not allege otherwise. As such, they have no liability under § 1983, and
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Plaintiff’s claim against them will be dismissed for failure to state a claim upon which relief may
be granted.
B.
Judges Bathmellow and Collons
The complaint references Judge Bathmellow and Judge Collons, but it is unclear exactly
what Plaintiff is asserting against them or on what grounds for relief he relies. In any event,
judges are entitled to absolute immunity for actions arising out of all acts performed in the
exercise of their judicial functions. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Plaintiff
makes no allegation that these judges acted outside of their judicial functions in their dealings
with him. Therefore, the claims against Judges Bathmellow and Collons will be dismissed for
failure to state a claim.
C.
Seven Counties
The complaint also references Seven Counties. Plaintiff’s claim against Seven Counties
seems to stem from actions by Dr. Harrison, who was apparently employed by Seven Counties.
However, an employer is not subject to liability under § 1983 for the actions of its employee
because the doctrine of respondeat superior, or the right to control employees, does not apply in
§ 1983 actions to impute liability onto supervisors. Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir.
1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Rather, to establish supervisory
liability in a § 1983 action, “[t]here must be a showing that the supervisor encouraged the
specific incident of misconduct or in some other way directly participated in it. At a minimum, a
§ 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy,
729 F.2d at 421 (citing Hays v. Jefferson County, Ky., 668 F.2d 869, 872-74 (6th Cir. 1982)).
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Here, even if any action by Dr. Harrison rose to the level of a constitutional violation,
Plaintiff fails to demonstrate any facts showing that Seven Counties encouraged any specific
incidents of misconduct or implicitly authorized, approved, or knowingly acquiesced to any
unconstitutional conduct. Accordingly, Plaintiff’s claim against Seven Counties will be
dismissed for failure to state a claim upon which relief may be granted.
A separate Order of dismissal will be entered consistent with this Memorandum Opinion
and Order.
Date:
May 25, 2011
cc:
Plaintiff, pro se
4411.010
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