Ocoee v. Louisville Metro Housing Authority, Sec. 8 et al
Filing
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MEMORANDUM OPINION by Judge John G. Heyburn, II on 8/29/2011;For the reasons set forth herein, and the Court being otherwise sufficiently advised, IT ISORDERED that Plaintiffs claims against Defendants Corporate Security, Mitchell, Hunter,Churchill, Bagley, Paige, Lassiter, Dunn, Campbell, Newman, Dudley, Fisher, Ewing, and Edlinare DISMISSED and pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim uponwhich relief may be granted.IT IS FURTHER ORDERED that Plaintiffs claim s against Louisville Metro HousingAuthority, Sec. 8 and Section 8 Housing Staff for discrimination in violation of the Fair HousingAct will be allowed to proceed. The Court will enter a separate Scheduling Order governing thedevelopment of these remaining claimscc:counsel (JSS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11CV-336-H
SPRINGWATER OCOEE
PLAINTIFF
v.
LOUISVILLE METRO HOUSING AUTHORITY, SEC. 8 et al.
DEFENDANTS
MEMORANDUM OPINION
Without the assistance of counsel, Plaintiff Springwater Ocoee filed a complaint
proceeding in forma pauperis. This matter is before the Court on preliminary review of the
complaint pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997). For the reasons that follow, the Court will dismiss some of Plaintiff’s claims and allow
others to proceed.
I.
Plaintiff used a court-supplied general complaint form to initiate this lawsuit.1 She sues
Louisville Metro Housing Authority, Sec. 8 (“LMHA”); Section 8 Housing Staff; Corporate
Security; and what appear to be six LMHA staff members–Juanita Mitchell, Juan Hunter, Sherry
Churchill, Larry Bagley, Sylvester Paige, and Pat Lassiter. Plaintiff also sues four individuals
whom she identifies as residents of St. Catherine Court–Ethel Newman, Leola Fisher, Norma
Dudley, and William Ewing. She also sues Goldie Dunn and Joe Campbell, whom she identifies
as buyers of her car.
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Subsequent to filing the complaint, Plaintiff moved to dismiss her claims against
Louisville Metro Police Department and its employees. The Court granted her motion by
separate Memorandum and Order entered this date. Therefore, Plaintiff’s claims against these
Defendants are not addressed herein.
In the body of her complaint, Plaintiff states that she lost her house and then moved into
St. Catherine Court. She states that Defendants Newman, Dudley, and Fisher committed hate
crimes against her and that Defendant Ewing threatened her life twice because of her race.
Plaintiff states that she is “Native American/white.” She further states that “all offenses have
been committed against me by black people except one, Larry Bagley, who grabbed my breast.”
Plaintiff further states, “They’ve put me off 1 yr. ½ for a handicap apt. . . . They put me
from 43 to 8,403 on the Sec. 8 waiting list.” She states, “My civil rights and constitutional
rights, as a disabled, senior, Native American have been completely denied since July 2009 by
LMHA.” She states that, “LMHA, Section 8 office violated Disability laws, violated civil rights,
violated constitutional rights in housing.” Plaintiff further states that she has been “racially,
physically, sexually assaulted Harrassed, not allowed same rights as other tenants Denied
activities, Denied canine companion & therapy dog. Ignored all doctors orders. Ask to be
transferred to Noltemyer in Okolona 1 ½ years ago. Put at bottom of list everytime.”
After filing the original complaint, Plaintiff filed a second complaint on a general
complaint form, which the Court construes as a supplement to the complaint. There she names
Joseph “Tony” Edlin as a Defendant. As grounds for filing the case in federal court, Plaintiff
states, “Racial Slurs, stalking, Threatening my life on three occassions, following and watching
me each time I leave my apt or the building.” She states that Defendant Edlin is “a black male
whom hangs with the drug dealers whom live here in the complex.” She states that Defendant
Edlin threatened to kill her.
II.
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 604-05. Upon review, this Court must
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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).
While a reviewing court must liberally construe pro se pleadings, Boag v. MacDougall,
454 U.S. 364 (1982) (per curiam), a plaintiff is required to plead more than bare legal
conclusions. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996); see also
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Therefore, the complaint
must contain either direct or inferential allegations respecting all the material elements to sustain
a recovery under some viable legal theory. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988).
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 a court to conjure allegations
on a litigant’s behalf,’” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (quoting Erwin v.
Edwards, 22 F. App’x 579, 580 (6th Cir. 2001)), and the Court is not required to create a claim
for the 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).
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III.
A.
Louisville Metro Housing Authority, Sec. 8 and Sec. 8 Housing Staff
Construing the pro se complaint broadly, as the Court is required to do at this stage,
Boag v. MacDougall, 454 U.S. at 365, Plaintiff states that she was denied constitutional rights in
housing, denied a handicap apartment, moved to the bottom of the waiting list for Section 8
housing, not allowed the same rights as other tenants, and denied her canine companion and
therapy dog by LMHA and the Section 8 Housing Staff. She states that she was denied civil
rights as a “disabled, senior, Native American.” Upon review, the Court will allow Plaintiff’s
claims against Defendants LMHA and Section 8 Housing Staff for discrimination in violation of
the Fair Housing Act to proceed past initial review. In permitting these claims to proceed, the
Court passes no judgment on their ultimate outcome.
B.
Bagley
Plaintiff alleges that Defendant Bagley, who appears to be an employee of LMHA,
grabbed her breast. While such conduct is deplorable and offensive, courts have routinely held
that isolated incidents of sexual touching which do not result in injury do not give rise to a
constitutional claim. See Jackson v. Madery, 158 F. App’x 656, 661 (6th Cir. 2005) (correction
officer’s conduct in allegedly rubbing and grabbing prisoner’s buttocks in degrading manner was
“isolated, brief, and not severe” and failed to state a constitutional claim); Johnson v. Ward, No.
99-1596, 2000 U.S. App. LEXIS 11463, at *1 (6th Cir. May 11, 2000) (male prisoner’s claim
that a male officer placed his hand on the prisoner’s buttock in a sexual manner and made an
offensive sexual remark did not state constitutional claim). Accordingly, Plaintiff’s claim
against Defendant Bagley will be dismissed for failure to state a claim upon which relief may be
granted.
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C.
Mitchell, Hunter, Churchill, Paige, Lassiter, Corporate Security, Dunn, and
Campbell
The complaint makes no reference to Defendants Mitchell, Hunter, Churchill, Paige,
Lassiter, or Corporate Security, except in Plaintiff’s lists of Defendants. Plaintiff states no facts
regarding these Defendants’ personal involvement in the events giving rise to the complaint.
While the Court is aware of its duty to construe pro se complaints liberally, Plaintiff is not
absolved of her duty to comply with the Federal Rules of Civil Procedure by providing
Defendants with “fair notice of the basis for [her] claims.” Swierkiewicz v. Sorema N.A., 534
U.S. 506, 514 (2002). To state a claim for relief, Plaintiff must show how each Defendant is
accountable because the Defendant was personally involved in the acts about which she
complains. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). As the complaint contains no
facts concerning these Defendants, the claims against them will be dismissed for failure to state a
claim upon which relief may be granted.
As to Defendants Dunn and Campbell, Plaintiff identifies them only as the buyers of her
car and states “ask Chief White for info on these people, would not give me any info.” These
references are not sufficient to give these Defendants fair notice of the basis for Plaintiff’s claims
against them. Therefore, the claims against Defendants Dunn and Campbell will also be
dismissed for failure to state a claim.
D.
Newman, Fisher, Dudley, Ewing, and Edlin
Plaintiff states that Defendants Newman, Dudley, and Fisher committed hate crimes
against her and that Defendants Ewing and Edlin threatened her life because of her race. She
identifies these Defendants as residents of her apartment complex.
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“It is well settled that the question of whether and when prosecution is to be instituted is
within the discretion of the Attorney General.” Powell v. Katzenbach, 359 F.2d 234, 235 (D.C.
Cir. 1965). The Court does not have the power to direct that criminal charges be filed against
anyone. Peek v. Mitchell, 419 F.2d 575, 577-78 (6th Cir. 1970); Fleetwood v. Thompson, 358 F.
Supp. 310, 311 (N.D. Ill. 1972). Therefore, Plaintiff cannot bring criminal charges against any
individual by filing an action in this Court. Accordingly, Plaintiff’s claims against Defendants
Newman, Dudley, Fisher, Ewing, and Edlin will also be dismissed for failure to state a claim
upon which relief may be granted.
IV.
For the reasons set forth herein, and the Court being otherwise sufficiently advised, IT IS
ORDERED that Plaintiff’s claims against Defendants Corporate Security, Mitchell, Hunter,
Churchill, Bagley, Paige, Lassiter, Dunn, Campbell, Newman, Dudley, Fisher, Ewing, and Edlin
are DISMISSED and pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff’s claims against Louisville Metro Housing
Authority, Sec. 8 and Section 8 Housing Staff for discrimination in violation of the Fair Housing
Act will be allowed to proceed. The Court will enter a separate Scheduling Order governing the
development of these remaining claims.
Date:
August 29, 2011
cc:
Plaintiff, pro se
4412.010
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