Loper v. Cleveland Police Headquarters et al

Filing 3

Opinion & Order signed by Judge James S. Gwin on 2/6/17. The Court grants plaintiff's request to proceed in forma pauperis and dismisses this action under Section 1915(e). The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. (Related Doc. 2 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

LATASHA LOPER obo C.D.,

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Plaintiff,
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v.
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CLEVELAND POLICE HEADQUARTERS, et al., )
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Defendants.
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CASE NO. 1:16 CV 2565
JUDGE JAMES S. GWIN
OPINION & ORDER

On October 20, 2016, Plaintiff pro se Latasha Loper filed this in forma pauperis action
on behalf of her minor child, C.D., against Defendants Cleveland Police Headquarters, Cleveland
Metropolitan School District, and the Ohio Department of Education Procedural Safeguard.
Plaintiff alleges in the Complaint that the Cleveland Police were called by officials at her son’s
school about a problem concerning a rubber toy cellphone. She further alleges the police used
excessive force against her son, who was charged with assaulting police officers. Plaintiff
asserts claims for discrimination based on disability, race, gender, and age; improper arrest;
disorderly conduct; child abuse; assault; conspiracy; bullying; neglect; and, improper handling of
hearing decisions. She seeks $7 million in damages.
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 is
required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which
relief can be granted, or 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); Sistrunk v. City of Strongsville,

99 F.3d 194, 197 (6th Cir. 1996).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal , 129 S.Ct.
1937, 1949 (2009). The pleading standard Rule 8 announces does not require “detailed factual
allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id. A pleading that offers “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Id. Nor does a complaint suffice if it tenders naked
assertion devoid of further factual enhancement. Id. It must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard is
not akin to a “probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent
with” a defendant's liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’ ” Id.
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). A complaint must contain
either direct or inferential allegations respecting all the material elements of some viable legal
theory to satisfy federal notice pleading requirements. See Schied v. Fanny Farmer Candy
Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). District courts are not required to conjure up
questions never squarely presented to them or to construct full blown claims from sentence
fragments. Beaudette, 775 F.2d 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.
As a threshold matter, while Rule 17(c) of the Federal Rules of Civil Procedure permits a
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parent to bring suit on behalf of her minor child, it does not allow a non-lawyer parent to
represent her child in federal court. Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002)
(“parents cannot appear pro se on behalf of their minor children because a minor's personal cause
of action is [his] own and does not belong to [his] parent or representative”); Matthews v.
Craige, Civ. No. 1:16-CV-11680, 2016 WL 3522320, at *2 (E.D. Mich. June 28, 2016)
(“Because Plaintiff is proceeding pro se in this action and is not a licensed attorney, he may not
bring claims on behalf of his minor children.”). There is no indication that Ms. Loper is an
attorney.
Further, insofar as Plaintiff seeks relief on her own behalf under the Individuals with
Disabilities Education Act, the Complaint does not set forth factual allegations reasonably
suggesting she might have a valid claim. At most, Plaintiff merely asserts legal conclusions that
her son was deprived of a free appropriate public education.
Accordingly, the request to proceed in forma pauperis is granted, and this action is
dismissed under section 1915(e). Further, 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.
IT IS SO ORDERED.

Dated: February 6, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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