Dancy v. City of Cleveland et al

Filing 5

Memorandum Opinion and Order denying as moot the Motion for Appointment of Counsel and an Interpreter 3 , the Motion to Proceed In Forma Pauperis 2 is granted and the Complaint is dismissed pursuant to 28 U.S.C. § 1915(e), but without prejudice to any state law claims he may pursue. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Dan A. Polster(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

RICO DANCY,
Plaintiff,
v.
CITY OF CLEVELAND, et al.,
Defendants.

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CASE NO. 1:14 CV 0877
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER

Pro se plaintiff Rico Dancy filed the above-captioned action against the City of Cleveland
and Cassandra Bledsoe. Mr. Dancy alleges his personal property was willfully destroyed by the
defendants, who refuse to pay him for the damage. He seeks unspecified compensatory damages.
For the reasons that follow, the action is dismissed.
Background
The relevant facts are scant. Mr. Dancy alleges the Cleveland Police asked him to interpret
the sign language gestures of his friend. When he refused, “the Cleveland Police Department”
allegedly removed a hearing aid from Mr. Dancy’s ear, stomped on it and exclaimed, “Oops!”
Plaintiff attaches a letter, dated February 1, 2011, addressed to him on letterhead from the
Cleveland Department of Public Safety and signed by Ms. Bledsoe. (Doc. No. 4 at 2.) The letter is

in response to a “complaint” he filed with the City alleging an incident involving police misconduct.1
The incident occurred on January 28, 2011, when Mr. Dancy claimed the Cleveland police broke
his $6000 hearing aid while he was with friends at Tower City. Ms. Bledsoe requested the name of
plaintiff’s advocate at the Cleveland Hearing and Speech Center, witness names and contact
information and a photograph or physical evidence of the damaged hearing aid. Mr. Dancy does not
allege he provided any of the information that was requested or whether he further pursued the
matter with the City.
Also attached to the complaint, is a January 16, 2014 letter from State Representative Bill
Patmon to Cleveland City Hall Claims Examiner Alexis Jones. Representative Patmon explains he
was contacted by Mr. Dancy regarding an incident with the police and asks Ms. Jones to “let me
know what your office has done to address his concerns.” (Doc. No. 4 at 1.) Again, Mr. Dancy does
not state whether a response was received or whether what formal inquiries he pursued to address
his concerns.
Mr. Dancy now states Ms. Bledsoe allegedly advised him that the police “can do whatever
they want regarding the deaf and blind.” (Doc. No. 1.) Ultimately, he claims the defendants refused
to pay him for the hearing aid.
A copy of a “Stalking Civil Protection Order” Ms. Bledsoe filed against Mr. Dancy on April
10, 2014, is also attached to his Complaint. See Bledsoe v. Dancy, No. 14cv825156 (Ct. Com. Pl.
Cuyahoga Ct.)(Mason, J.)2 After a full hearing on May 1, 2014, Judge Mason granted Ms. Bledsoe’s

1

It appears Mr. Dancy initiated an administrative action when he complained to the City
because Ms. Bledsoe’s identifies his case as “REF: OPS11-041.”
2

An indictment was also issued on June 12, 2014, charging Mr. Dancy with menacing by
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petition for Civil Stalking Protection Order. Mr. Dancy was served by the Sheriff in open court.
The terms of the Order expire on May 1, 2019.
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court shall dismiss an
action under section 1915(e) if it fails to state a claim. An action is subject to dismissal if it lacks
an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898
F.2d 1196 (6th Cir. 1990).
Jurisdiction
Before addressing the merits of any action, federal courts are obliged to ensure that they
enjoy subject matter jurisdiction to hear the case. See Sinochem Intern. Co. Ltd. v. Malaysia
Intern. Shipping Corp., 549 U.S. 422, 430-431(2007)(“[A] federal court has leeway to choose
among threshold grounds for denying audience to a case on the merits.”) (internal quotation
marks omitted); Smith v. Texas Children's Hospital, 172 F.3d 923, 925 (5th Cir.1999) (courts
must examine the basis for the exercise of federal subject matter jurisdiction). A court must
raise the issue sua sponte if it discovers that it lacks subject matter jurisdiction. Giles v. Nylcare
Health Plans, Inc., 172 F.3d 332, 336 (5th Cir.1999).

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stalking and telecommunications harassment. See State of Ohio v. Dancy, No. CR-14-584172-A
(Ct. Com. Pl. Cuyahoga County). A capias was issued and sent to the Sheriff for Mr. Dancy on
June 26, 2014.

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Mr. Dancy does not include any jurisdictional basis for filing this action in federal court.
Even liberally construing this pro se complaint as a civil rights suit against a municipality for
damages resulting from its alleged destruction of his personal property does not insulate the case
from summary dismissal.
Civil Rights Violation
To prevail in a civil rights action under 42 U.S.C. §1983, a plaintiff must plead and prove
that the defendants, acting under color of state law, deprived the plaintiff of a right secured by
the Constitution and law of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981),
overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 alone
creates no substantive rights; rather, it is the means through which a plaintiff may seek redress
for deprivations of rights established in the Constitution or federal laws. Baker v. McCollan, 443
U.S. 137, 144 n. 3 (1979). The statute applies only if there is a deprivation of a constitutional
right. See e.g., Paul v. Davis, 424 U.S. 693, 699-701(1976); Baker, 443 U.S. at 146-47. Thus,
“[t]he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right
‘secured by the Constitution and laws’ ” of the United States. Baker, 443 U.S. at 140.
Mr. Dancy does not identify any constitutional violation in his complaint. Without
advancing any argument that the damage to his personal property implicated a violation of his
rights under the Constitution, this Court cannot otherwise assume subject matter over his
complaint.3

3

Without suggesting plaintiff has any valid federal claim, the Court notes that even if this
were a claim under the Takings Clause of the Fifth Amendment it would be unripe. A takings
claim is only ripe for review if a property owner is first denied just compensation. Williamson
County v. Hamilton Bank, 473 U.S. 172, 194(1985)(“Because the Fifth Amendment proscribes
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Principles requiring generous construction of pro se pleadings are not without limits.
Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). District courts are not
required to conjure up questions never squarely presented to them or to construct full blown
claims from sentence fragments. Id. at 1278. To do so would “require ...[the courts] to explore
exhaustively all potential claims of a pro se plaintiff, ... [and] would...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.” Id. at 1278.
Finally, legal conclusions are not sufficient to present a valid claim, and this
Court is not required to accept unwarranted factual inferences. Morgan v. Church's Fried
Chicken, 829 F.2d 10, 12 (6th Cir. 1987); see Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir.
1971) (A pleading will not be sufficient to state cause of action under Civil Rights Act if its
allegations are but conclusions). A plaintiff is obligated “to provide the grounds of his
entitlement to relief . . . labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Assn. of Cleveland Fire Fighters v. Cleveland, 502 F.3d 545, 548
(6th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mr. Dancy has
not met his obligation to set forth a valid federal claim and, thus, the Court cannot assume
subject matter jurisdiction.

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takings without just compensation, no constitutional violation occurs until just compensation has
been denied.”); Waste Mgmt. v. Metropolitan Gov't, 130 F.3d 731, 739 (6th Cir.1997).
Accordingly, “if a State provides an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just Compensation Clause until it has used the
procedure and been denied just compensation.” Coles v. Granville, 448 F.3d 853, 861 (6th
Cir.2006) (quoting Williamson, 473 U.S. at 195, 105 S.Ct. 3108)(emphasis added). Thus, in
order for a plaintiff to bring a takings claim in federal court, he or she must first pursue available
remedies in state court.
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Conclusion
Based on the foregoing, the Motion for Appointment of Counsel and an
Interpreter is denied as moot (Doc. No. 3), the Motion to Proced In Forma Pauperis (Doc. No. 2)
is granted and the Complaint is dismissed pursuant to 28 U.S.C. § 1915(e), but without prejudice
to any state law claims he may pursue. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that an appeal from this decision could not be taken in good faith.4
IT IS SO ORDERED.

/s/Dan Aaron Polster 7/10/14
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE

4

28 U.S.C. § 1915(a)(3) provides: “An appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good faith.”
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