Darby v. Kagler, et al
Memorandum Opinion: The plaintiff's motion to proceed in forma pauperis (Doc. No. 2 ) is granted, and for the reasons stated above, her action is summarily dismissed pursuant 28 U.S.C. Section 1915(e)(2)(B). 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. (Related Doc. No. 1 ). Judge Sara Lioi on 7/5/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
MARY LOUISE DARBY,
ROBERT KAGLER, et al,
CASE NO. 5:16cv2426
JUDGE SARA LIOI
Seeking to proceed in forma pauperis, pro se plaintiff Mary L. Darby has filed this
civil rights action against multiple public officials and employees of Twinsburg Township
and Summit County, Ohio, in addition to Kevin McCulley of the Bertolini Trucking
Company and Thom Cuddy of Ohio Edison. (Doc. No. 1.) However, neither her complaint,
nor the twenty-six page single spaced document she submitted with it to support her claims,
sets forth clear, discernible factual allegations. In paragraph II.B of her complaint, she
asserts she is alleging constitutional claims under 42 U.S.C. § 1983 for violations of
“Freedom of Religion, Freedom of Speech, Privileges encompass rights of individuals real
and personal property, Bill of Rights, Due Process of Law, Equal protection.” (Id. at 7, ¶
II.B.) As best as the Court can discern, plaintiff contends the defendants have violated her
constitutional rights because zoning laws were enforced against the Rescue Temple Church
of God in Twinsburg, which resulted in the church’s demolition.
Although the standard of review for pro se pleadings is liberal, see Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011), 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). Pro se plaintiffs must still meet basic pleading requirements and courts are
not required to conjure allegations on their behalf. See Erwin v. Edwards, 22 F. App’x 579,
580 (6th Cir. 2001). Federal district courts are required, under 28 U.S.C. § 1915(e)(2)(B),
to screen all in forma pauperis actions, and dismiss before service any such action that the
court determines is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). In order to avoid a dismissal for
failure to state a claim, a complaint must set forth “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Id. (holding that the dismissal
standard articulated in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007) governs dismissals for failure to state a claim under § 1915(e)(2)(B)). The
“allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. In addition, a complaint must contain allegations sufficient to “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quotation
marks and citations omitted).
Even according the plaintiff’s complaint the deference to which a pro se pleading is
entitled, the Court finds it must be dismissed pursuant to § 1915(e)(2)(B). The plaintiff’s
vague, conclusory, and generalized allegations are simply insufficient to raise a right to
relief on her alleged claims against the defendants above a speculative level. She has failed
to allege discernible facts suggesting plausible constitutional violations, or what each of the
defendants allegedly did to violate her rights. See, e.g., Terrance v. Northville Reg. Psych.
Hosp., 286 F.3d 834, 842 (6th Cir. 2002) (“This court has consistently held that damage
claims against governmental officials alleged to arise from violations of constitutional
rights cannot be founded upon conclusory, vague or general allegations, but must instead,
allege facts that show the existence of the asserted constitutional rights violation recited in
the complaint and what each defendant did to violate the asserted right.”) (citation omitted)
(emphasis in original).
Even assuming the plaintiff’s contention is that each of the defendants violated her
constitutional rights because they were involved in some way in the enforcement of zoning
laws that resulted in the demolition of the Rescue Temple Church of God, this is
insufficient to allege a plausible constitutional claim. See Davet v. City of Cleveland, 456
F.3d 549, 553 (6th Cir. 2006) (recognizing that the constitutional right of an individual to
use private property has always been subservient to the public welfare and is subject to the
legitimate local police power, and that demolition of a building in order to enforce building
codes or abate a public nuisance by itself does not violate the constitution). See also Harris
v. City of Akron, 20 F.3d 1396 (6th Cir. 1994) (city officials’ demolition of a building did
not violate a building owner’s constitution rights). Although the plaintiff appears to allege,
in purely conclusory terms, that she and/or the church were subjected to such things as “ill
will,” “false claims,” and “RLU [religious land use] discrimination,” she does not allege
discernible facts plausibly supporting those conclusions, or supporting a plausible inference
that the zoning enforcement actions taken against the Rescue Temple Church of God were
taken in violation of any constitutional right or rights the plaintiff has.
In sum, the plaintiff’s complaint must be dismissed because, even liberally
construed, it fails to set forth facts reasonably suggesting she might have a plausible federal
claim against the defendants in this case. See Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d
716, 726 (6th Cir. 1996) (a court is not required to accept summary allegations or
unwarranted conclusions in determining whether a complaint state a claim for relief).
Accordingly, the plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is
granted, and for the reasons stated above, her action is summarily dismissed pursuant 28
U.S.C. § 1915(e)(2)(B). 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: July 5, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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