Kelly v. City of New Philadelphia et al

Filing 4

Memorandum Opinion and Order: Plaintiff's Motion to Proceed In Forma Pauperis (Doc. No. 3 ) is granted and this action is dismissed pursuant to 28 U.S.C. Section 1915(e). The Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Sara Lioi on 8/22/2011. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CEDRIC KELLY,

)
)
PLAINTIFF,
)
)
vs.
)
)
)
CITY OF NEW PHILADELPHIA, et al, )
)
)
DEFENDANTS.
)

CASE NO. 5:11CV474
JUDGE SARA LIOI

MEMORANDUM OF OPINION
AND ORDER

Pro se plaintiff Cedric Kelly filed this civil rights action against the City of New
Philadelphia, the New Philadelphia Police Department, New Philadelphia Police Officer Thad
Polka, unknown employees of the City of New Philadelphia, and unknown law enforcement
officers of the New Philadelphia Police Department. In the Complaint, plaintiff alleges the
deprivation of his constitutional rights, and states causes of action arising under 18 U.S.C. ''
241, 242 and 245; 18 U.S.C. ' 1001(a)(1)(2); 18 U.S.C. ' 1203; 42 U.S.C. ' 14141; and 42
U.S.C. ' 1983. He seeks declaratory, injunctive, and monetary relief.
Plaintiff also filed a Motion to Proceed In Forma Pauperis. (ECF 3). That
Motion is granted.
Background
Plaintiff=s Complaint contains very little in the way of specific factual
allegations. He claims that, on January 27, 2011, defendants New Philadelphia Police
Department (APolice Department@), Police Officer Thad Polka, and unknown New Philadelphia
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law enforcement officers Aengaged in a pattern or practice of using excessive force@ against
him while he was Acarrying out a routine activity and either has not committed any crime or
infraction or has committed a minor infraction.@ (Compl. at & 10).
He further claims that, on Amultiple dates,@ defendants Police Department,
Officer Polka and unknown New Philadelphia law enforcement officers A engaged in a pattern
or practice of (1) falsely arresting and charging plaintiff because he is Abelieved likely to
complain of police misconduct@ and Abehaves or speaks in manner that is perceived [by
defendant Police Department] to be disrespectful but which does not constitute criminal
behavior;@ (2) falsifying official reports; (3) conducting searches and investigations in an
improper manner; (4) using a law enforcement database for personal use against plaintiff=s
personal and business interests; (5) causing irreparable damage by defamation of plaintiff=s
character and reputation; and (6) attempting to detain plaintiff Ain order to compel third
parties.@ (Compl. at && 11, 12). Plaintiff does not set forth any details or information regarding
any specific instances when defendants allegedly engaged in these behaviors.
Plaintiff further alleges that, on Amultiple dates,@ defendants City of New
Philadelphia and unknown employees of the City have Atolerated the misconduct of individual
[police] officers […] through its act or omissions.@ Plaintiff alleges that these acts or omissions
include (1) the failure to supervise defendant New Philadelphia police officers adequately to
prevent misconduct; (2) the failure to monitor defendant police officers who engage in or may be
likely to engage in misconduct; (3) the failure to establish a procedure whereby citizen
complaints are adequately investigated; (4) the failure to investigate adequately incidents in
which a police officer uses lethal or non-lethal force; (5) the failure to adequately review citizen

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complaints regarding the use of lethal or non-lethal force; and (6) the failure to adequately
discipline officers who engage in misconduct. Again, plaintiff does not set forth any specific
details or information regarding the factual basis of any of these claims.
Plaintiff claims generally that his allegations against defendants state causes of
action under 18 U.S.C. '' 241, 242 and 245; 18 U.S.C. ' 1001(a)(1)(2); 18 U.S.C. ' 1203; 42
U.S.C. ' 14141; and 42 U.S.C. ' 1983. (Compl. at && 2(A) - (G)). He seeks the following relief:
(1) a declaration that defendants have engaged in a pattern or practice of depriving plaintiff of his
constitutional rights; (2) an order that the defendants Arefrain from engaging in any of the
predicate acts forming the basis@ of his pattern or practice allegations; and (3) monetary relief in
the amount of $2.5 million.1
Standard
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), a complaint filed by a plaintiff proceeding
in forma pauperis shall be dismissed with prejudice if it (1) is frivolous or malicious; (2) fails to
state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. ' 1915(e)(2)(B).2 A complaint is frivolous Awhere it
lacks an arguable basis in either law or fact.@ Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
complaint lacks an arguable basis in law or fact if it Acontains factual allegations that are
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Specifically, plaintiff seeks $500,000 each for emotional pain and suffering; loss of reputation; defamation
of character; slander; and punitive damages.
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An in forma pauperis claim may be dismissed sua sponte, without prior notice to the plaintiff and without
service of process on the defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28
U.S.C. ' 1915(d)] and is dismissing the claim for one of the reasons set forth in the statute. McGore v.
Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert.
denied, 474 U.S. 1054 (1986); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177,
1179 (6th Cir. 1985).

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>fantastic or delusional= or if it is based on legal theories that are indisputably meritless.@ Brown
v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000) (quoting Neitzke, 490 U.S. at 327-28).
Dismissal of a complaint under ' 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted Ais appropriate only if it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to relief.@ Brown,
207 F.3d at 866; see also Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). The court must
A>construe the complaint in the light most favorable to plaintiff [and] accept all well-pleaded
factual allegations as true.=@ Thomas, 481 F.3d at 437 (quoting Trzebuckowski v. City of
Cleveland, 319 F.3d 853, 855 (6th Cir. 2003)). In addition, pleadings filed by a pro se litigant are
held to Aless stringent standards than formal pleadings drafted by lawyers,@ and must be liberally
construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Thomas, 481 F.3d at 437.
For the reasons stated below, plaintiff=s Complaint is dismissed pursuant to
'1915(e).
Analysis
As set forth above, plaintiff alleges violations of 18 U.S.C. '' 241, 242 and 245;
18 U.S.C. ' 1001(a)(1)(2); 18 U.S.C. ' 1203; and 42 U.S.C. '14141.3 These are criminal
statutes, however, which do not provide for a private right of action. See United States v.

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Sections 241, 242 and 245 criminalize certain deprivations of civil rights and conspiracy to deprive civil
rights. Section 1001 provides a criminal penalty for making false statements to a department of the agency of the
United States. Section 14141 authorizes the Attorney General to file a civil action on behalf of the United States to
eliminate unlawful patterns and practices of government officials that deprive individuals of their civil rights.
Section 1203 criminalizes the act of taking one person hostage in order to compel a third person to do or abstain
from doing an act as a condition for the release of the person that is being held hostage. There is no suggestion in
Section 1203 of a private right of action.

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Oguaju, 2003 WL 21580657 (6th Cir. July 9, 2003) (finding that A[t]he district court properly
dismissed Oguaju=s claim pursuant to 18 U.S.C. '' 241 or 242 because Oguaju has no private
right of action under either of these criminal statutes.@); Banks-Bey v. Acxiom, 2010 WL
395221 at * 3-4 (N.D. Oh. Jan. 27, 2010) (stating that there is no private right of action under
either 18 U.S.C. '' 241, 242, 245, or 1001); Moore v. Commonwealth of Kentucky, 2010 WL
3505173 at * 4 (W.D. Ky. Aug. 10, 2010) (finding that there is no private right of action under
18 U.S.C. ' 1001); Leisure v. City of Reynoldsburg, Ohio, 2008 WL 4137961 at * 7 (S.D. Oh.
Aug. 29, 2008) (finding that no private right of action exists under 42 U.S.C. ' 14141).
Accordingly, plaintiff has failed to state claims upon which relief may be
granted under any of the criminal statutes cited in his Complaint, warranting their dismissal as
a matter of law pursuant to ' 1915(e).
Plaintiff also, however, appears to allege claims under 42 U.S.C. ' 1983, which
does provide a private right of action. To establish a claim under ' 1983, a plaintiff must
establish that (1) he was deprived of a right secured by the Constitution or the laws of the
United States, and (2) the deprivation was caused by a person acting under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988); Simescu v. Emmet County Dep=t of Soc. Services,
942 F.2d 372, 374 (6th Cir. 1991). If a plaintiff fails to make a showing on any essential
element of a ' 1983 claim, that claim must fail. Simescu, 942 F.3d at 375.
Although pleadings filed by a pro se litigant are held to less stringent standards than
formal pleadings drafted by lawyers, a complaint Amust contain sufficient factual matter,
accepted as true, to >state a claim to relief that is plausible on its face.=@ Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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AA 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.
As the Supreme Court further explained in Iqbal, A[a] pleading that offers >labels
and conclusions= or >a formulaic recitation of the elements of the elements of a cause of action
will not do.=@ Id. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). It is not
sufficient to plead A[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.@ Id. Indeed, while legal conclusions can provide the framework
of a complaint, Athey must be supported by factual allegations.@ Id. at 1950.
The Court finds that plaintiff=s Complaint in the instant case fails to contain
sufficient factual matter Ato state a claim for relief that is plausible on its face@ pursuant to
Iqbal, supra. While plaintiff alleges generally that defendants engaged in a pattern or practice
of various unconstitutional actions, he does not plead any facts to support his allegations.
Rather, plaintiff=s Complaint is comprised entirely of legal conclusions and Athreadbare
recitals of the elements of a cause of action.@ Iqbal, 129 S.Ct. at 1949. Even under the less
stringent pleading standards afforded pro se litigants, plaintiff=s Complaint is insufficient as it
fails to allege any factual content to support its claims for relief.
Accordingly, plaintiff has failed to state a claim upon which relief may be granted
and his Complaint is subject to dismissal as a matter of law pursuant to ' 1915(e).4
Conclusion
For all the foregoing reasons, plaintiff=s Motion to Proceed In Forma
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Dismissal of plaintiff=s Complaint for failure to plead sufficient facts applies not only to his claims
under Section 1983, but is also an alternative ground for dismissal of his claims under 42 U.S.C. ' 14141
and 18 U.S.C. '' 241, 242, 245, 1001(a)(1), and 1203.

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Pauperis (ECF 3) 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.5
IT IS SO ORDERED.

Dated: August 22, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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28 U.S.C. ' 1915(a)(3) provides, in pertinent part:

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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