Overall v. Carson

Filing 4

Memorandum Opinion and Order. Plaintiff's Application to Proceed In Forma Pauperis (ECF No. 2 ) is granted and this action is dismissed pursuant to 28 U.S.C. § 1915(e). 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. Signed by Judge Solomon Oliver, Jr. on 6/27/2018. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CYRIL SYDNEY OVERALL, Pro Se,
Plaintiff
v.
BEN CARSON, et al.,
Defendants

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Case No.: 1:18CV595

JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION
AND ORDER

Pro se Plaintiff Cyril Sydney Overall filed this Bivens action against United States
Department of Housing and Urban Development (“HUD”) Secretary Ben Carson. In his Complaint,
Plaintiff contends the Cleveland Metropolitan Housing Authority (“CMHA”) is not responsive to
his complaints about thefts from his apartment, and Carson, as the Secretary of HUD, is ultimately
responsible for CMHA. He asserts violation of Article IV, Section 2 of the United States
Constitution and seeks an Order from this Court requiring CMHA take appropriate action to ensure
better security at his building. For the reasons discussed herein, Plaintiff’s Complaint is hereby
dismissed pursuant to 28 U.S.C. § 1915(a)(3) for failure to state a claim upon which relief could be
granted.

Background
Plaintiff claims he moved into the Lorain Square apartments, which are owned and operated

by CMHA, on November 30, 2011. He alleges that since March 2013, he has experienced a number
of small thefts from his apartment, including two dress shirts, dress pants, a book, a bottle of
Listerine, and small food items. He blames gang activity for his losses which he totals at $500.00.
He also suggests these thefts are related to a previous theft of his cellular telephone from the
Lakewood Public Library. Plaintiff claims that despite multiple letters and communication to the
CMHA Police Department, they have not yet responded in the manner he expected. Plaintiff then
wrote to other organizations, including the Federal Bureau Investigation, Senator Sherrod Brown,
and Ben Carson. Carson did not respond in a manner that resolved the problem to Plaintiff’s
satisfaction, and as a result, Plaintiff brought this action against him. Plaintiff asserts he is entitled
to relief under Article IV, Section 2 of the United States Constitution and asks the Court to order
CMHA to provide better security at his apartment complex.

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 Court is required to dismiss
an in forma pauperis 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). An action has no arguable basis in law when a Defendant is immune from
suit or when a Plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke,
490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992);
Lawler, 898 F.2d at 1199.
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When determining whether the Plaintiff has stated a claim upon which relief can be granted,
the Court must construe the Complaint in the light most favorable to the Plaintiff, accept all factual
allegations as true, and determine whether the Complaint contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
Plaintiff’s obligation to provide the grounds for relief “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Id. Although a
Complaint need not contain detailed factual allegations, its “factual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all the allegations in the
Complaint are true.” Id. The Court is “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009), further explains the “plausibility” requirement, stating that
“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.” Iqbal, 556 U.S.
at 678. Furthermore, “the plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a Defendant acted unlawfully.” Id. This determination is a
“context-specific task that requires the reviewing Court to draw on its judicial experience and
common sense.” Id.

Analysis
As an initial matter, Plaintiff fails to identify any particular individual constitutional right he
believes Carson violated. He claims he is entitled to relief under Article IV, Section 2 of the United
State Constitution; however, none of the clauses in this Article are relevant or applicable to the facts
alleged in this case. Principles requiring generous construction of pro se pleadings are not without
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limits. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); 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. Beaudett,
775 F.2d at 1278. Even liberally construed, the Complaint does not sufficiently state a plausible
federal constitutional claim which Plaintiff can base a Bivens action.
Furthermore, even if Plaintiff had identified a viable cause of action, he has not alleged facts
suggesting he can hold this Defendant liable for that violation. Plaintiff cannot establish the liability
of any Defendant absent a clear showing that the Defendant was personally involved in the activities
which form the basis of the alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371
(1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept. 20, 1995). Plaintiff
alleges CMHA was not responsive to his reports of thefts of his personal property. Carson is named
as a Defendant only because he is the Secretary of HUD and CMHA receives funding from HUD.
This is not sufficient to establish liability in a Bivens action. Jones v. City of Memphis, 586 F.2d
622, 625 (6th Cir. 1978). A Defendant can only be held liable for his own actions. The Complaint
simply contains no facts which reasonably associate Carson with CMHA’s response to his reports
of criminal activity at his apartment complex.

Conclusion
Accordingly, Plaintiff’s Application to Proceed In Forma Pauperis (ECF No. 2) is granted
and this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies, pursuant to 28

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U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.1
IT IS SO ORDERED.

/S/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE
June 27, 2018

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