Weber v. Louisville Metro Police Department et al

Filing 5

MEMORANDUM OPINION AND ORDER by Judge David J. Hale. For reasons set forth, this action will be dismissed by separate order. Gary Dewayne Weber shall no longer be permitted to proceed in forma pauperis in any action in the United States Distric t Court for the Western District of Kentucky against the LMPD or CPD. The Clerk of Court is DIRECTED not to accept for filing any action by Gary Dewayne Weber against either of these entities that is not accompanied by the proper filing fee.cc: counsel, plaintiff pro se, USDC WDKY (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
GARY DEWAYNE WEBER,

Plaintiff,

v.

Civil Action No. 3:16-cv-779-DJH

LOUISVILLE METRO POLICE DEPARTMENT et al.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Gary Dewayne Weber filed this pro se action proceeding in forma pauperis.
Because Plaintiff is proceeding in forma pauperis, the Court must perform an initial review of
the complaint pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth, 114 F.3d 601 (6th
Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
This action, which names the Louisville Metro Police Department (LMPD) and the
Carrollton Police Department (CPD) as Defendants, was filed shortly after this Court’s entry of a
Memorandum Opinion in another of Plaintiff’s cases warning him that “any additional lawsuits
against LMPD and CPD repeating the allegations made in this and previous lawsuits will result
in sanctions imposed against him, including potential monetary sanctions and filing restrictions.”
Weber v. Louisville Metro Police Dep’t, No. 3:16-CV-381-DJH, 2016 WL 6909483, at *3 (W.D.
Ky. Nov. 22, 2016). That Memorandum Opinion noted that Plaintiff had filed three other
previous actions against LMPD and CPD essentially repeating the same allegations of racial
discrimination, false arrest, abuse, and the confiscation of his property, each of which was
dismissed. See Civil Action Nos. 3:16-cv-85-DJH (dismissed for failure to establish municipal
liability and for lack of subject matter jurisdiction under Apple v. Glenn, 183 F.3d 477, 479 (6th
Cir. 1999)); 3:15-cv-754-DJH (dismissed for failure to establish municipal liability and for lack

of subject matter jurisdiction under Apple v. Glenn); 3:15-cv-573-JHM (dismissed for failure to
meet the notice-pleading standard under Fed. R. Civ. P. 8(a) and for failure to state a claim).
Plaintiff also filed two previous cases alleging essentially the same facts naming LMPD only.
See Civil Action Nos. 3:14-cv-715-DJH (dismissed for failure to meet the notice-pleading
standard under Fed. R. Civ. P. 8(a) and for failure to state a claim); 3:14-cv-315-CRS (dismissed
for failure to meet the notice-pleading standard under Fed. R. Civ. P. 8(a)).
A review of the complaint in the instant case reveals that Plaintiff is merely repeating
allegations made in prior lawsuits against LMPD and CPD. His complaint alleges that there is a
“hang out” for police and peace officers who heckle and make racist comments at a store plaza
where Plaintiff regularly shops. He states that officers have been lying about him for eight years
and trying to make him “find out about crimes about people that I don’t know about!” He
complains about corrupt police, having been falsely arrested several times between 2007 and
2017, and of officers of both police departments plotting to murder him by making a false arrest
for crimes he did not commit. He states that the basis for federal question jurisdiction in this
case is “civil rights, to spong my record, and live in peace.”
Section 1983 of title 42 of the United States Code provides the exclusive remedy for
constitutional claims brought against state and local officials and local units of government.
Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir. 1987), vacated on other grounds, 488 U.S. 1036
(1989). Police departments like LMPD and CPD are not suable under § 1983. See Matthews v.
Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991)
(holding that a police department may not be sued under § 1983). Rather, the claims against the
LMPD are against the Louisville Metro Government as the real party in interest, and the claims
against the CPD are against the City of Carrollton as the real party in interest. See Matthews v.

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Jones, 35 F.3d at 1049 (“Since the Police Department is not an entity which may be sued, Jefferson
County is the proper party to address the allegations of Matthews’s complaint.”).

As explained in prior Memoranda and Opinions in Plaintiff’s cases, when a § 1983 claim
is made against a municipality, this Court must not only analyze whether Plaintiff’s harm was
caused by a constitutional violation but also whether the municipality is responsible for that
violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).
“[A] municipality cannot be held liable solely because it employs a tortfeasor -- or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Searcy v. City of
Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir.
1994). A municipality cannot be held responsible for a constitutional deprivation unless there is
a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. at 691; Deaton v.
Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To demonstrate municipal liability,
a plaintiff “must (1) identify the municipal policy or custom, (2) connect the policy to the
municipality, and (3) show that his particular injury was incurred due to execution of that
policy.” Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003) (citing Garner v. Memphis Police
Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
None of the allegations in the complaint demonstrate that any alleged wrongdoing or
injury occurred as a result of a policy or custom implemented or endorsed by either the
Louisville Metro Government or the City of Carrollton. Accordingly, the complaint fails to
establish a basis of liability against the municipalities and fails to state a cognizable § 1983
claim.

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Moreover, “a district court may, at any time, sua sponte dismiss a complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure
when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous,
devoid of merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.
1999). Plaintiff’s complaint meets this standard. Therefore, this action will be dismissed by
separate Order.
Finally, because Plaintiff is again raising essentially the same allegations he raised in
Weber v. Louisville Metro Police Dep’t, No. 3:16-CV-381-DJH and other cases despite the
Court’s prior warning, it is appropriate for this Court to enter sanctions against Plaintiff.
Proceeding in forma pauperis is a privilege and not a right. Wilson v. Yaklich, 148 F.3d
596, 603 (6th Cir. 1998). It is well-established that the federal courts may revoke or deny the
privilege of proceeding as a pauper when a litigant abuses the privilege by repeatedly filing
frivolous, harassing, or duplicative lawsuits. See In re McDonald, 489 U.S. 180, 184-85 (1989)
(per curiam); Maxberry v. S.E.C., 879 F.2d 222, 224 (6th Cir. 1989) (per curiam). When a
litigant abuses the privilege of proceeding in forma pauperis by repeatedly filing frivolous
lawsuits, federal courts have the inherent power to impose appropriate sanctions, including
restrictions on future access to the judicial system, to deter future frivolous, harassing, or
duplicative lawsuits. See Chambers v. Nasco, Inc., 501 U.S. 32, 43-45 (1991); Futernick v.
Sumpter Twp., 207 F.3d 305, 314 (6th Cir. 2000); Filipas v. Lemons, 835 F.2d 1145, 1146 (6th
Cir. 1987). While this Court cannot absolutely foreclose an individual from initiating an action
or pursuing an appeal in federal court, Ortman v. Thomas, 99 F.3d 807, 811 (6th Cir. 1996), the
Court may impose prefiling restrictions on an individual with a history of repetitive or vexatious
litigation. Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir. 1998); Ortman, 99 F.3d

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at 811. A district court may properly require prolific litigators to obtain leave of court before
accepting any further complaints for filing, see Filipas, 835 F.2d at 1146, and may deny a
vexatious litigant permission to proceed in forma pauperis. See, e.g., Boswell v. Wright, 142
F.3d 432 (6th Cir. 1998). The imposition of these prospective orders has been upheld where a
litigant has demonstrated a “history of unsubstantial and vexatious litigation [amounting to] an
abuse of the permission granted to him to proceed as a pauper in good faith . . . .” Maxberry, 879
F.2d at 224. It is clear to this Court that Plaintiff’s litigation history amounts to such an abuse.
Given Plaintiff’s abusive case filings, the Court concludes that the least severe sanction
likely to deter him from filing future duplicative, vexatious, and frivolous lawsuits is to impose a
permanent injunction prohibiting him from proceeding in forma pauperis in any future action
filed in this Court against the LMPD or the CPD. This injunctive relief has no punitive aspect
and serves a purely deterrent function. Accordingly, IT IS HEREBY ORDERED that:
Gary Dewayne Weber shall no longer be permitted to proceed in forma pauperis in
any action in the United States District Court for the Western District of Kentucky against
the LMPD or CPD. The Clerk of Court is DIRECTED not to accept for filing any action by
Gary Dewayne Weber against either of these entities that is not accompanied by the proper
filing fee.
Date:

April 5, 2017

David J. Hale, Judge
United States District Court

cc:

Plaintiff, pro se
Defendants
United States District Court, Western District of Kentucky, all divisional offices
4415.009

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