Bey v. Trumbull County Health Department et al

Filing 8

Memorandum of Opinion and Order For the reasons set forth herein, this action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff's motions to proceed in forma pauperis are granted. ECF Nos. 2 , 5 . The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decisioncould not be taken in good faith. Judge Benita Y. Pearson on 2/27/2019. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

VERNON LAMONT BEY,
Plaintiff,
v.
TRUMBULL COUNTY HEALTH
DEPARTMENT, et al.,
Defendants.

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CASE NO. 4:18CV1166
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER
[Resolving ECF Nos. 2, 5]

Pro se Plaintiff Vernon Lamont Bey filed this action against the Trumbull County Health
Department, Trumbull County Building Inspection Department, Trumbull County Sheriff
Department,1 Warren Municipal Court, Warren Municipal Prosecutor’s Office (collectively,
“Trumbull County”);2 Warren Municipal Court Judge Terry F. Ivancheck, Trumbull County
Health Department Inspector Tony Angelo, Trumbull County Sheriff Thomas Altier, and Chris
Tanahill.3 ECF No. 1. Plaintiff brings suit under 42 U.S.C. § 1983, claiming Defendants
violated his constitutional rights under the Fourth, Fifth, Eighth, and Fifteenth Amendments to
the United States Constitution. Id. at PageID #: 1.

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Under Ohio law, a county sheriff’s department is not a legal entity capable of being sued under
42 U.S.C. § 1983, and the Trumbull County Sheriff’s Department is dismissed from this action. See
Carmichael v. City of Cleveland, 571 F. App’x 426, 435 (6th Cir. 2007) (citations omitted).
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Plaintiff characterizes his claims against the Trumbull County agencies and Warren Municipal
Court and Prosecutor’s office as claims against Trumbull County. See ECF No. 1 at PageID #: 1.
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It is not entirely clear from the Complaint with which County agency Tanahill is associated, but it
appears to be the Building Inspection Department. See ECF No. 1 at PageID #: 2.

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Also before the Court are Plaintiff’s motions to proceed in forma pauperis. ECF Nos. 2,
5. The Court grants these motions.
For the reasons that follow, this case is dismissed.
I. Background
On August 26, 2015, Defendant Angelo charged Plaintiff in Warren Municipal Court
with a violation of Warren City Ordinance § 1368.02. ECF No. 1 at PageID #: 2. Plaintiff filed
a notice of removal to the United States District Court, Northern District of Ohio on September
8, 2015. Id. On October 6, 2015, the District Court remanded the case to the Warren Municipal
Court. Id. On March 21, 2016, the Warren Municipal Court issued a warrant for Plaintiff’s
arrest for failure to appear. Id. Plaintiff was arrested on March 22, 2016, arraigned, and held
without bond until March 28, 2016. Id. Plaintiff contends this violated his right to due process.
Id.
In May 2016, Plaintiff was again arrested for failure to appear. Id. He was again
arraigned, pleaded “not guilty,” and was released on a personal recognizance bond. Id. Plaintiff
alleges the Warren Municipal Court case against him was dismissed, but the property which was
the subject of the ordinance violation was torn down on the orders of Defendants Tanahill, Altier,
and Angelo. Id.
On these facts, Plaintiff claims Defendants deprived him of his rights under the First,
Fourth, Fifth, Eighth, and Fourteenth Amendments, including his right to freedom of speech
without retaliation, right to be free from cruel and unusual punishment, and right to be free from
governmental action that shocks the conscience. Id. at PageID #: 3. Plaintiff alleges Trumbull

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County’s policies, practices, and customs were a “moving force” behind his injuries. Id. He also
argues the Trumbull County Sheriff “failed to properly honor his Oath of Honor which is
unconstitutional conduct.” Id.
II. Standard of Review
Pro se pleadings are liberally construed by the Court. Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). Notwithstanding, the
district court is required under 28 U.S.C. § 1915(e)(2)(B) to review all in forma pauperis
complaints, and to dismiss before service any such complaint that the Court determines is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. See Hill v. Lappin, 630 F.3d 468, 470
(6th Cir. 2010). Moreover, while some latitude must be extended to pro se plaintiffs with respect
to their pleadings, the Court is not required to conjure unpleaded facts or construct claims against
defendants on behalf of a pro se plaintiff. See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir.
2008) (citation omitted); Thomas v. Brennan, No. 18-1312, 2018 WL 3135939, at *1 (N.D. Ohio
June 26, 2018) (citing Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985) and
Erwin v. Edwards, 22 F. App’x. 579, 580 (6th Cir. 2001)).
In order to withstand scrutiny under Section 1915(e)(2)(B)(ii), “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Hill, 630 F.3d at 470-71 (holding that the dismissal standard articulated in Ashcroft v. Iqbal, 556
U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) governs dismissals for
failure to state a claim under Section 1915(e)(2)(B)) (quoting Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 570)). Thus, a complaint fails to state a claim on which relief may be
granted when it lacks “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 471.
III. Law and Analysis
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must show: (1) a violation of
a right secured by the Constitution or laws of the United States, and (2) that the alleged violation
was committed by a person acting under color of state law. Redding v. St. Edward, 241 F.3d
530, 532 (6th Cir. 2001) (citation omitted). Section 1983 claims in Ohio are subject to the same
two-year limitations period in Ohio Rev. Code § 2305.10 governing the statute of limitations for
bodily injury. See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc). But
federal law determines when a Section 1983 cause of action accrues, and “the statute of
limitations period begins to run when the plaintiff knows or has reason to know that the act
providing the basis of his or her injury has occurred.” Collyer v. Darling, 98 F.3d 211, 220 (6th
Cir. 1996) (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)).
To hold an individual defendant liable under Section 1983, a plaintiff must allege
“personal involvement” in the alleged unconstitutional conduct. See Grinter, 532 F.3d at 575
(personal involvement is required in order to incur personal liability). It is a basic pleading
requirement that a plaintiff must attribute specific factual allegations to particular defendants.
Twombly, 550 U.S. at 555 (holding that, in order to state a claim, a plaintiff must make sufficient
allegations to give a defendant fair notice of the claim). When a person is named as a defendant
without an allegation of specific conduct, even under the liberal construction afforded to pro se
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complaints, the complaint against that defendant is subject to dismissal. See Gilmore v. Corr.
Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing complaint where plaintiff alleged
only that the defendant violated his constitutional rights). “Merely listing names in the caption of
the complaint and alleging constitutional violations in the body of the complaint is not enough to
sustain recovery under § 1983.” Id. (citing Flagg Bros. v. Brooks, 436 U.S. 149 (1978)).
Conclusory allegations of unconstitutional conduct are insufficient to state a Section 1983 claim
– a complaint must contain either direct or inferential factual allegations against individual
defendants respecting the material elements of some viable legal theory to satisfy federal notice
pleading requirements. See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37
(6th Cir. 1988).
A. Warren Municipal Court Judge Terry Ivancheck is Immune from Suit
It is well-settled that judges are absolutely immune from civil suits for money damages,
including suits brought under § 1983, unless their actions are taken in a nonjudicial capacity or in
the complete absence of all jurisdiction. Barnes v. Winchell, 105 F.3d 1111, 1115-16 (6th Cir.
1997). Even liberally construing the Complaint, Plaintiff does not allege any facts supporting a
plausible exception to absolute judicial immunity concerning Judge Ivancheck. Judge Ivancheck
is accordingly dismissed from Plaintiff’s suit.
B. Plaintiff Fails to State a Claim Against Altier, Angelo, and Tanahill
1. Claim that Plaintiff was held without bond from March 22-28, 2016
Plaintiff alleges he was arrested on March 22, 2016 for failure to appear with respect to a
city violation for premises sanitation, arraigned, and “held without bond until [March 28, 2016]

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which violated [his] due process” and “Held Without Bond For Defending [His] Constitutional
Rights.” ECF No. 1 at PageID #: 2. As an initial matter, this claim was not brought within the
two-year limitations period governing Section 1983 actions. Plaintiff was aware on March 28,
2016 that he was being held without bond and therefore had knowledge of the injury. That is
sufficient for the limitations period to accrue. See Rotella v. Wood, 528 U.S. 549, 555 (2000)
(“[I]in applying a [federal] discovery accrual rule, we have been at pains to explain that discovery
of the injury, not discovery of the other elements of a claim, is what starts the clock.”). He did
not file suit until May 21, 2018. ECF No. 1. Because Plaintiff failed to file his claim of an
alleged constitutional violation for being held without bond within the two-year limitations
period, his claim is time-barred.
Even if Plaintiff’s claim were not barred by the two-year statute of limitations, the claim
is nevertheless subject to dismissal. Plaintiff fails to allege any specific conduct on the part of
individual Defendants Altier, Angelo, and Tanahill upon which he bases this claim of
unconstitutional conduct. See Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002)
(dismissing plaintiff’s claim where complaint did not allege with any degree of specificity which
of the named defendants were personally involved in or responsible for each alleged violation of
rights). Moreover, Plaintiff’s allegation that he was held without bond in violation of his right to
due process and in retaliation for defending his constitutional rights are simply legal conclusions
masquerading as factual allegations. See Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th
Cir. 2008) (“Conclusory allegations or legal conclusions masquerading as factual allegations will
not suffice [to state a plausible claim for relief].”) (citation omitted); see also Frazier, 41 F.

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App’x at 764 (“The court is not required to accept non-specific factual allegations and inferences
or unwarranted legal conclusions.”). Legal conclusions alone are not sufficient to present a valid
claim, and the Court is not required to accept unwarranted factual inferences. Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
2. Claim for destruction of property on September 26, 2016
Plaintiff claims that his property was torn down upon the orders of Tanahill, Altier, and
Angelo. ECF No. 1 at PageID #: 2. That threadbare statement is the extent of his factual
allegations concerning the destruction of his property. Plaintiff does not allege any facts, which
if believed, plausibly support a conclusion that Tanahill, Altier, and Angelo violated his
constitutional rights by ordering his property destroyed.
Plaintiff’s statement of his other Section 1983 claims against Tanahill, Altier, and Angelo
similarly fails to provide factual allegations concerning specific unconstitutional conduct on the
part of the individual Defendants. Rather, it recites legal conclusions without providing any
factual support, as follows:
Defendants, while acting under color of state law, deprived Plaintiff of his rights
secured by the First, Fourth, Eighth, and Fourteenth Amendments and Amendment
V, Amendment VIII to the United States Constitution, including Plaintiffs’ right to
exercise freedom of speech without retaliation, right to be free from excessive force,
his right to be free from cruel and unusual punishment, and his right to be free from
governmental actions that shock the conscience. Defendant Trumbull County’s
policies, practices, and customs were a moving force behind Plaintiffs’ injuries.
Trumbull County Sheriff failed to properly honor his Oath of honor which is
unconstitutional conduct.
Id. at PageID #: 3.

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Plaintiff’s legal conclusions are insufficient to state a plausible claim for relief. Bishop,
520 F.3d at 519. The Court’s obligation to liberally construe pro se pleadings does not require a
the Court to conjure factual allegations or construct claims on Plaintiff’s behalf. See Martin v.
Overton, 391 F.3d 710, 714 (6th Cir. 2004) (citing Erwin v. Edwards, 22 F. App’x. 579, 580 (6th
Cir. 2001)).
For the above reasons, Defendants Altier, Angelo, and Tanahill are dismissed from this
action.
C. Plaintiff Fails to State a Claim against Trumbull County
Plaintiff characterizes his claims against the Trumbull County agencies and Warren
Municipal Court and Prosecutor’s office as claims against Trumbull County. See ECF No. 1 at
PageID #: 1. To the extent that Plaintiff asserts Section 1983 claims against Altier, Angelo, and
Tanahill in their official capacities, those claims are the equivalent of a suit against Trumbull
County. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Michigan
Dept. of State Police, 491 U.S. 58, 68 (1989)). Counties are considered persons within the
meaning of Section 1983. Alkire v. Irving, 330 F.3d 802, 814 (6th Cir. 2001).
As an initial matter, because Plaintiff fails to allege facts stating an underlying
constitutional violation, his Section 1983 claim against Trumbull County fails. Grabow v. Cty.
of Macomb, 580 F. App’x. 300, 311-12 (6th Cir. 2014) (affirming the trial court’s grant of
summary judgment to county defendant where plaintiff failed to present a plausible constitutional
violation noting that “[a]bsent an underlying constitutional violation, [plaintiff’s] claim against
the county under § 1983 must also fail”). Because Plaintiff’s Section 1983 claims against

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Defendants Altier, Angelo, and Tanahill fail for the reasons discussed above, his Section 1983
claim for relief against Trumbull County also fails.
Even if Plaintiff had asserted a plausible constitutional violation underlying his Section
1983 claim against Trumbull County, that claim would still be subject to dismissal. In order to
state a plausible Section 1983 claim against Trumbull County, “a plaintiff must ‘identify the
policy, connect the policy to the [County] itself and show that the particular injury was incurred
because of the execution of that policy.’” Jordan v. City of Detroit, 557 F. App’x 450, 454 (6th
Cir. 2014) (quoting Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 383
(6th Cir. 2004) (internal quotation marks and citation omitted); Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694, (1978)). Plaintiff alleges Trumbull County’s policies, practices, and customs
were a “moving force” behind his injuries. ECF No. 1 at PageID #: 3. But beyond this
conclusory statement, Plaintiff fails to identify any specific policy or custom of Trumbull
County, or of any of the county agencies or municipal offices named in the Complaint,
concerning the constitutional violations alleged, or show how these customs and polices caused
the claimed constitutional violation. Jordan, 557 F. App’x at 454 (affirming district court’s
dismissal of municipal § 1983 claim where plaintiff failed to produce any evidence of a policy or
custom regarding the alleged underlying constitutional violation).
Plaintiff’s bare conclusory allegation that Trumbull County’s policies, practices, and
customs were a “moving force” behind his injuries is insufficient to state a plausible Section
1983 claim against Trumbull County or any of the county agencies or municipal offices.

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Accordingly, Plaintiff’s claims against Trumbull County, including the named county agencies
and municipal offices, are dismissed.
IV. Conclusion
For all of the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B). Plaintiff’s motions to proceed in forma pauperis are granted. ECF Nos. 2, 5.
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.

February 27, 2019
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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