Rorie v. Dragoo et al

Filing 9

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 4/10/2018. A separate order shall enter dismissing case.cc:counsel, plaintiff pro se (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISON
MICHAEL WAYNE RORIE
v.

PLAINTIFF
CIVIL ACTION NO. 5:17CV-149-TBR

JAMES DRAGOO et al.

DEFENDANTS
MEMORANDUM OPINION

Plaintiff Michael Wayne Rorie filed this pro se civil-rights action (DN 1) pursuant to
42 U.S.C. § 1983. Since a similar pro se action Plaintiff originally filed in Christian County
Circuit Court was removed to this Court, Civil Action No. 5:17-CV-162-TBR, the Court recently
ordered that the cases be consolidated and that case be dismissed (DN 5). The original complaint
from Civil Action No. 5:17-CV-162-TBR has been docketed in the present case as “Civil-Rights
Complaint from Consolidated Case” (DN 6). This action is before the Court for initial review of
the complaint (DNs 1 & 6) pursuant to 28 U.S.C. § 1915(e) and McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199
(2007). For the reasons that follow, the Court will dismiss this action.
I. SUMMARY OF CLAIMS
Plaintiff brings this action against James Dragoo, a Sergeant with the Christian County
Sheriff’s Department (CCSD); Clevin Robinson, a former Deputy Sheriff with the CCSD; Jack
Rolands, a Sergeant with the CCSD; and Livy Leavell, the Christian County Sheriff.1 Plaintiff
does not state in what capacity he is suing Defendants. Plaintiff states that the alleged wrongful
events occurred on September 28, 2016. He describes what happened as follows:
My next door neighbor (James Dragoo) Alleges he seen me entering my home
and He thought I had an EPO against me (in which I didn’t). InsteAd of calling
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In the complaint from the consolidated case (DN 6), Plaintiff also states that “[t]here are 2 other deputies that were
involved but CCSD says they have no knowledge of this incident.”

city police he called 5 other Sheriff Deputies & K9 to apprehend me. With no
search warrant they broke into home locating me upstairs in Attic space. I tried to
surrender but officers refused And put k-9 on me, Tazzed me 5 times, broke my
nose, kicked my shoulder, head and stomach until I passed out for 10-20 seconds
then was cuffed And drug down flight of stAirs then threw in front yArd until
Ambulance arrived. Once finding out that I had no EPO they put a made up
charge of 1st Degree AssuAlt on service Animal & resisting arrest. I did 100 days
in jail And then all charges were dismissed against me.
Plaintiff states that as a result of the incident he (1) suffered a broken nose; (2) received
6 staples in his left knee from a K-9 bite; (3) tore his “LabreAl in shoulder” which required two
surgeries; (4) has equilibrium issues “due to be[ing] tazzed 5 times And kicked in heAd”; and
(5) suffered Post Traumatic Stress Disorder and emotional distress. Plaintiff asserts violations of
the Fourth and Eighth Amendments. Although unclear, it appears that Plaintiff may be asserting
the following additional claims: (1) “Knowingly making a false statement”; (2) “Aiding Another
(officer) to violate a rule”; (3) “Harrassment”; (4) “Abuse of Authority”; (5) “Abuse of Process”;
and (6) retaliation. As relief, Plaintiff seeks justice, compensatory and punitive damages, and
asks for “a formal investigation [to] be completed.”
II. STANDARD OF REVIEW
Upon review under 28 U.S.C. § 1915(e), 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). A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure
to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not require [it]
to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create
a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). To command otherwise would require the Court “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).
III. ANALYSIS
A. Federal Claims
Plaintiff names James Dragoo, Clevin Robinson, Jack Rolands, and Livy Leavell as
Defendants in this action. However, with the exception of stating that Defendant Dragoo called
the sheriff’s office, an action that fails to state a constitutional violation, Plaintiff makes no
allegations against these Defendants in his complaint. “It is axiomatic that a complaint under
42 U.S.C. § 1983 must show a causal connection between the named defendants and the alleged
constitutional deprivation . . . .” Cox v. Barksdale, No. 86-5553, 1986 WL 18435, at *1 (6th Cir.

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Nov. 13, 1986) (citing Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Dunn v.
Tennessee, 697 F.2d 121, 128 (6th Cir. 1982)). The specific facts of the complaint must explain
how the defendants are personally responsible for the alleged injuries. Smith v. Rowe,
761 F.2d 360, 369 (7th Cir. 1985). “Where a complaint alleges no specific act or conduct on the
part of the defendant and the complaint is silent as to the defendant except for his name
appearing in the caption, the complaint is properly dismissed, even under the liberal construction
to be given pro se complaints.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974); see also
Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (per curiam) (stating that personal
involvement by the defendant is an essential element in a § 1983 cause of action asserting a
constitutional deprivation); LeMasters v. Fabian, No. 09-702 DSD/AJB, 2009 WL 1405176,
at *2 (D. Minn. May 18, 2009) (“To state an actionable civil rights claim against a government
official or entity, a complaint must include specific factual allegations showing how that
particular party’s own personal acts or omissions directly caused a violation of the plaintiff’s
constitutional rights.”) (emphasis in original).
Plaintiff’s complaint fails to state the involvement by each Defendant in the alleged
wrongdoing or state how each Defendant is responsible for the asserted constitutional
deprivations. Accordingly, Plaintiff’s complaint fails to state a claim as to the named
Defendants.
The Court notes that it gave Plaintiff an opportunity to correct this deficiency in his
complaint, but he failed to do so. On January 25, 2018, the Court entered an Order (DN 7)
noting that Plaintiff’s complaint failed to state the capacity in which he was suing Defendants
and failed to set forth what wrongful actions were performed by each Defendant. The Order
gave Plaintiff 30 days to file an amended complaint indicating in what capacity he was suing

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Defendants and setting forth facts sufficient to show how each Defendant was involved in the
wrongful acts about which Plaintiff complains. In the Order, the Court warned Plaintiff that his
failure to comply with the Order may result in dismissal of this action. The time for Plaintiff to
respond to the Order has passed without Plaintiff complying with the Order or providing any
facts as to the alleged wrongful behavior of the named Defendants.
For the reasons stated herein, the federal claims will be dismissed.
B. State-law Claims
To the extent Plaintiff is attempting to bring state-law claims, the Court declines to
exercise supplemental jurisdiction over such claims. Under 28 U.S.C. § 1367(c), “[t]he district
courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court
has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. ' 1367(c)(3).
Because the Court will dismiss the federal claims over which it has original jurisdiction, it will
decline to exercise supplemental jurisdiction over the state-law claims and dismiss them without
prejudice. See Runkle v. Fleming, 435 F. App’x 483, 486 (6th Cir. 2011) (“[W]hen, as here, ‘all
federal claims are dismissed before trial, the balance of considerations usually will point to
dismissing the state law claims.’”) (quoting Musson Theatrical, Inc. v. Fed. Express Corp.,
89 F.3d 1244, 1254-55 (6th Cir. 1996)).
IV. CONCLUSION
For the foregoing reasons, this complaint will be dismissed by separate Order.
Date:

April 10, 2018

cc:

Plaintiff, pro se
Counsel for Defendants
4413.003

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