Bowersock v. City of Lima, Ohio

Filing 7

Memorandum Opinion: Defendant's motion to dismiss (Doc. No. 4) is granted. The complaint is dismissed in its entirety pursuant to 28 U.S.C. § 1915(e). I certify, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this dec ision could not be taken in good faith.Finally, Plaintiff's motions for a temporary restraining order (Doc. No. 2) and for injunctive relief (Doc. No. 6) are denied as moot. This case is closed re 4 2 6 . Judge Jeffrey J. Helmick on 6/6/2018. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

William Lee Bowersock,

Case No. 3:17-cv-2029

Plaintiff
v.

MEMORANDUM OPINION

City of Lima, Ohio,
Defendant

Pro se Plaintiff, William Lee Bowersock, initiated this litigation against the City of Lima,
Ohio, alleging his right to secede from the Defendant. (Doc. No. 1). The Plaintiff further alleges the
Defendant’s refusal to recognize his secession and the Defendant’s continued trespass onto his
property violates his rights under the United States Constitution. (Id.)
Pending before me are Plaintiff’s motion for a temporary restraining order (Doc. No. 2),
Defendant’s motion to dismiss (Doc. No. 4) and Plaintiff’s motion for injunctive relief (Doc. No. 6).
I. DEFENDANT’S MOTION TO DISMISS
A. Applicable Legal Standard
Fed.R.Civ.P. 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim upon
which relief can be granted.” Courts must accept as true all of the factual allegations contained in
the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to dismiss under Rule
12(b)(6), “even though 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.’” Ass'n of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than “a
formulaic recitation of the elements of a cause of action”). A complaint must state sufficient facts
to, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (explaining that the plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully” and requires the complaint to allow the court to draw the
reasonable inference that the defendant is liable for the alleged misconduct).
B. Discussion
It is axiomatic that “[p]rinciples requiring generous construction of pro se pleadings are not
without limits.” Bradley v. Mason, 833 F.Supp.2d 763, 769 (N.D. Ohio 2011) (quoting Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989)). To the extent a plaintiff seeks to invoke constitutional violations,
they are still required to state a viable legal theory to meet federal notice pleading requirements. See
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988).
Plaintiff fails to state a cause of action under 42 U.S.C. § 1983. To establish a prima facie case
under 42 U.S.C. § 1983, Plaintiff must assert that a person acting under color of state law deprived
him of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Parratt v. Taylor, 451 U.S. 527, 535 (1981). He contends he has a constitutional right to secede from
the City of Lima, but the City is not recognizing it. To the contrary, there is no constitutional right
to secede from the Union of the United States, the State of Ohio, or the City of Lima. See White v.
Cannon, 73 U.S. (6 Wall.) 443, 450, 18 L.Ed. 923 (1867) (holding that the Louisiana ordinance of
secession “was an absolute nullity”); White v. Hart, 80 U.S. (13 Wall.) 646, 651, 20 L.Ed. 685 (1871)
(ruling that “[a]t no time were the rebellious States,” including Georgia, “out of the pale of the
Union”); Taylor v. Thomas, 89 U.S. (22 Wall.) 479, 491, 22 L.Ed. 789 (1874) (invalidating the issuance
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of treasury notes following Mississippi’s ordinance of secession); and Daniels v. Tearney, 102 U.S. 415,
418, 26 L.Ed. 187 (1880) (declining to discuss the invalidity of a secession ordinance because the
issue “has been settled by the arbitrament of arms and the repeated adjudications of this court”).
Because Plaintiff has not identified a constitutional right that the City violated, he fails to state a
claim upon which relief may be granted under § 1983. In the absence of a viable legal claim,
Plaintiff’s case must be dismissed.
II. CONCLUSION
Accordingly, the Defendant’s motion to dismiss (Doc. No. 4) is granted. The complaint is
dismissed in its entirety pursuant to 28 U.S.C. § 1915(e). I certify, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this decision could not be taken in good faith.
Finally, Plaintiff’s motions for a temporary restraining order (Doc. No. 2) and for injunctive
relief (Doc. No. 6) are denied as moot. This case is closed.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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