Salyers v. MacArthur Park Apartments et al

Filing 22

ORDER that plaintiff's motions 5 MOTION for a Jury Trial; 6 MOTION for Court review; 7 MOTION the Court to Order an Investigation; and 8 MOTION to Preserve Evidence are Denied. REPORT AND RECOMMENDATION that defendants' 10 MOTION TO DISMISS be Granted and that plaintiff's claims against defendants be Dismissed with prejudice, and this matter be closed on the docket of the Court. ( Objections to R&R due by 2/25/2013). Signed by Magistrate Judge Karen L. Litkovitz on 2/6/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ROBIN L. SALYERS,
Plaintiff,
vs.
MACARTHUR PARK
APARTMENTS, eta!.,
Defendants.

Case No. 1:12-cv-312
Weber, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION

Plaintiff Robin Lee Salyers, proceeding prose, brings this action against defendants
Macarthur Park Apartments and Lawler-Wood Housing LLC c/o Macarthur Park II LP
(defendants), alleging violations of standards and regulations set by the United States
Department of Housing and Urban Development (HUD). (Doc. 3). Plaintiff also alleges that
defendants have violated the Constitution by providing uninhabitable premises for residents of
their apartments and have discriminated against their employees on the basis of race. This matter
is before the Court on: (1) plaintiffs motion for a jury trial (Doc. 5); (2) plaintiffs motion for
Court review (Doc. 6); (3) plaintiffs motion for Court-ordered investigation (Doc. 7); (4)
plaintiffs motion to preserve evidence (Doc. 8); and defendants' motion to dismiss plaintiffs
complaint (Doc. 10), plaintiffs response in opposition (Doc. 19), and defendants' reply
memorandum. (Doc. 20). The Court will first address defendants' motion to dismiss.
I. Defendants' Motion to Dismiss (Doc. 10)

Defendants move for dismissal under Fed. R. Civ. P. 12(b)(6), asserting that plaintiffs
complaint fails to raise any cognizable claims against them. Defendants contend the complaint is
vague and fails to include any factual allegations of defendants' purported misconduct or identify
the specific regulations defendants allegedly violated. Defendants further argue that to the extent

plaintiff seeks to raise claims on behalf of other residents or defendants' employees, the
complaint should be dismissed for lack of standing.
Plaintiffs memorandum in opposition to the motion to dismiss fails to address any of the
issues raised by the defendants. For the reasons stated below, the Court finds that defendants'
motion to dismiss plaintiffs complaint pursuant to Fed. R. Civ. P. 12(b)(6) is well-taken and
should be granted.
Rule 12(b)( 6) authorizes dismissal of a complaint for "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss,
plaintiffs complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to
reliefthat is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662,663 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." !d. (citing Twombly, 550 U.S. at 556).
Furthermore, the plaintiff must provide in the claim "more than an unadorned, the-defendantunlawfully-harmed-me accusation." !d. (citing Twombly, 550 U.S. at 555).
It is well-settled that a document filed prose is "to be liberally construed" and that a pro

se complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers .... " Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized the Supreme
Court's "liberal construction" case law has not had the effect of"abrogat[ing] basic pleading
essentials" in prose suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Courts are not
required to devote time to a case when the nature of a pro se plaintiffs claim "defies
comprehension." Roper v. Ford Motor Co., No. 1:09cv427, 2010 WL 2670827, at *3 (S.D. Ohio

2

April6, 2010) (Report & Recommendation), adopted, 2010 WL 2670697 (S.D. Ohio July 1,
2010) (citing Jones v. Ravitz, No. 07-10128, 2007 WL 2004755, at *2 (E.D. Mich. July 6,
2007)).
The "factual" allegations of plaintiffs two-page complaint consist ofthe following:
STATEMENT OF CLAIM
Lawler-wood housing is a property management company, that manages or owns
or manages for other owners, One of being apartment complexes, one being
Macarthur Park Apartments. When speaking of what the defendants did or are
doing, is never something that happens to start now and end in three days, instead
what the defendants allow to start, has no stopping time, instead, things go on like
a never ending story. The defendants okays and says what happens and what does
not happen at the properties they manage, if something needs fix Lawler-wood
housing gives the final yes or no to the problem needing fix, so you will not hear
this happen on this day and ended on that day, because when it comes to profit, or
doing the right the defendants has chosen profit every time.
1. HUD FRAUD:
2. REFUSING TO ENFORCE HUD RULES FOR PROFIT:
3. INFLICTING CRUEL AND UNUSUAL PUNISHMENT OR ITS OWN
RESIDENTS;
In order for the defendants to save money they in return force the residents to
live in uncalled for conditions.
4. DISCRIMINATION AND WRONGFUL TERMINATION OF AFRICAN
AMERICAN MANAGERS AND OTHER EMPLOYEES:
Managers and employees were terminated for being African American, or
for trying to uphold the rules of the Assisted Housing Services Corporation or
HUD and standards set forth by the United States Government.
5. PROVIDING A UNSAFE ENFIRONMENT FOR RESIDENTS TO LIVE AND
EMPLOYEES TO WORK.
The defendants cares so much about their profit, that at any given time a
resident or employee could be badly hurt or killed.
6. FAlLURE TO PROVIDE A DRUG FREE LIVING ENVIRONMENT FOR ITS
RESIDENTS TO LIVE, ALSO REQUIRED BY THE RULES AND
STANDARDS SET FORTH BY HUD AND THE UNITED STATES
GOVERNMENT.

3

The defendants unwillingness to enforce a drug free living place for its
residents, has force the kids of Macarthur Park Apartments to witness a dead man
being carried out from a heron over dose. These same kids are force to live in
these conditions and witness more simply because the defendants needs more
profit.
7. FAILURE TO PROVIDE A DRUG FREE WORK PLACE FOR EMPLOYEES
TO WORK IN.
Maintenance man and other employees are forced to work around drugs,
after reporting this problem along with pictures to upper management and Lawlerwood Housing repeatedly, only to get no response, because in doing the right
thing would cost too much and would dip into profit.
8. FAILURE TO PROVIDE A QUALITY, WELL MAINTAINED, SAFE,
SANITARY, DRUG FREE ENVIRONMENT FOR ITS RESIDENTS TO LIVE.
ALSO REQUIRED BY THE RULES AND STANDARDS SET FORTH BY
HUD AND THE UNITED STATES GOVERNMENT.
When enforcing HUD rules, means less profit, the defendants has chosen
not to enforce HUD rules for more Profit.
9. OVER WORKING AND UNDER STAFFING OF EMPLOYEES:
Another way to keep up profit and bonuses is to under staff your
employees, demand more from the few Employees you have, get each of them to
do the work of two.
(Doc. 3 at 2-3).
The complaint then sets forth plaintiffs requested relief, including, among other things, a
refund of all money paid to defendants by HUD, money to be paid to all of defendants' tenants,
$250,000.00 for each wrongfully terminated employee, $500,000.00 each for the two African
American managers terminated by defendants, and punitive damages. /d. at 3-4.
The complaint provides no factual content or context from which the Court may
reasonably infer that defendants violated plaintiffs federal rights. 1 Plaintiffs complaint does
not contain sufficient factual matter, accepted as true, to state a claim to relief against these
defendants that is plausible on its face. Plaintiff does not allege any discernible facts as the

1

To the extent that plaintiff complains that defendants violated the rights of other tenants or defendants'
employees, he lacks standing to raise the claims of other persons. See United States v. Van, 931 F.2d 384 (6th Cir.

4

basis for his various claims. Nor does plaintiff allege facts showing how he was personally
harmed or injured by defendants' alleged actions. Plaintiffs conclusory allegations that
defendants committed HUD fraud, refused to enforce HUD rules, inflicted cruel and unusual
punishment on their residents, discriminated against their employees, and failed to provide a
safe and drug free environment, without more, fail to state a facially plausible claim for relief.
Thus, the complaint fails to state a claim for relief against defendants Macarthur Park
Apartments and Lawler-Wood Housing LLC c/o Macarthur Park II LP. The claims against
these defendants should be dismissed under Fed. R. Civ. P. 12(b)(6).
II. Plaintiff's Motions (Docs. 5, 6, 7, 8)
A. Plaintiffs motion for a jury trial (Doc. 15) is denied as moot.

In his motion, plaintiff states: "[t]he defendants are going to demand a jury trial,
so why not request a Jury trial, the more people to find the defendants guilty, the better." (Doc.
5). The Federal Rules of Civil Procedure provide that every party is entitled to a jury trial. Fed.
R. Civ. P. 38. As plaintiffs constitutional right to a jury trial under the Seventh Amendment of

the Constitution is protected by Rule 38, his motion is denied as moot.
B. Plaintiffs motion for Court review (Doc. 6) is denied.
Plaintiff requests that the Court "fully view" his case prior to defendants being served
with notice of the lawsuit to ensure that defendants do not alter or destroy relevant evidence.
(Doc. 6 at 1). Plaintiff filed this case in forma pauperis and, accordingly, the Court was required
to ensure that defendants were served with summons and copies of plaintiffs complaint pursuant
to 28 U.S.C. § 1915(d). The docket reflects that summons were issued to defendants on the same
day that plaintiff filed the complaint and his motion for Court review. (Docs. 3, 6, 9).

1991); Senter v. General Motors Corp., 532 F.2d 511, 516-17 (6th Cir. 1976). See also Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992).

5

Regardless ofthe merit, or lack thereof, of plaintiffs motion, as defendants have already been
served, plaintiffs request for Court review is denied as moot.
C. Plaintiffs motion for a Court-ordered investigation (Doc. 7) is denied.
Plaintiffs motion for "the Court to order an investigation" contains no specific request,
but instead details a variety of complaints regarding the manner in which defendants' property is
managed and maintained. It appears that plaintiff seeks to have the Court engage in an
investigation of the property and review potential discovery in the form of computer files. Such
requests are improper. The Federal Rules of Civil Procedure provide the mechanisms by which
discovery is obtained in civil lawsuits, namely that parties request information and evidence from
each other and without assistance from the Court. See, generally, Fed. R. Civ. P. 26-37.
Moreover, courts are not investigatory agencies. Accordingly, plaintiffs motion for a Courtordered investigation is denied.
D. Plaintiffs motion to preserve evidence (Doc. 8) is denied.
In support of his motion to preserve evidence, plaintiff contends that once defendants
have knowledge of this lawsuit they will alter the evidence, including the property at issue.
Plaintiff requests that court personnel, accompanied by employees ofHUD, go to defendants'
property unannounced and observe the allegedly uninhabitable living conditions. Plaintiffs
motion seeks the same type of investigation requested in connection with his motion for a Courtordered investigation (Doc. 7). Accordingly, for the reasons stated above in connection with that
motion, plaintiffs motion to preserve evidence is denied.

III. Conclusion
For the reasons stated herein, IT IS RECOMMENDED THAT defendants' motion to
dismiss (Doc. 10) be GRANTED, that plaintiffs claims against defendants be DISMISSED
with prejudice, and this matter be closed on the docket of the Court.

6

IT IS ORDERED that plaintiffs motions for a jury trial (Doc. 5), for Court review (Doc.
6), for Court-ordered investigation (Doc. 7), and to preserve evidence (Doc. 8) are DENIED.

Date:

~~~
~

..zh /t..3
~·

Karen L. Litkovitz
United States Magistrate Judge

7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ROBIN L. SALYERS,
Plaintiff,

Case No. 1:12-cv-312
Weber, J.
Litkovitz, M.J.

vs.
MACARTHUR PARK
APARTMENTS, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

8

SENDER: COMPLETE THIS SECTION

COMPLETE THIS SECTION ON DELIVERY

• Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this card to the back of the mailpiece,
or on the front if space permits.

A. Signature

~gent

X
B. Received by (Printed Name)

I

0 Addressee

C. Date of Delivery

1. Article Addressed to:

12-ob~,., ~ SA-t'f<r'.S
Z.." '-'\'{ ~v~t{~ U.
G-c ~ ~n1 0 H to.\ S I 1- 2._

D. Is delivery address different from ttem 17 0 Yes
If YES, enter delivery address below:
0 No

3. ~ceType
i!fCertified Mail
0 Registered
0 Insured Mail

0 Express Mail
0 Return Receipt for Merchandise

oc.o.D.

4. Restricted Delivery? (Extra Fee)
2. Article Number
(Transfer from service labeQ

PS Form 3811 , February 2004

7011 3500 0001 5345 5185

DYes