Wheeler v. Dayton Police Dept. et al

Filing 3

ORDER that 1. Given Plaintiffs in forma pauperis status, he is entitled to have service of process made by the United States Marshal (USM). To avail himself of such service, Plaintiff must properly prepare and submit to the Clerk of Court the summons form and the USM Form 285 for each Defendant. Upon receipt of this material from the Clerk of Court, the United States Marshal is ORDERED to make service of process in this case under Fed. R. Civ. P. 4(c)(3). All costs of service shall be advanced b y the United States. 2. Plaintiff must serve the Defendants or their attorney in the event an attorneys appearance is entered in the record with a copy of every document submitted for consideration by the Court. Plaintiff shall include with the ori ginal paper to be filed with the Clerk of Court a certificate stating the date and verifying that Plaintiff mailed a true and correct copy of any document to defendant(s) or their attorney. Any paper received by a District Judge or Magistrate Judge t hat has not been filed with the Clerk of Court or that fails to include a certificate of service will be disregarded by the Court. 3. Plaintiff must inform the Clerk of Court promptly of any changes of address which he has during the pendency of this lawsuit. Failure to do so may result in dismissal of his case for failure to prosecute. Signed by Magistrate Judge Sharon L Ovington on 8/30/13. (slo1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ERIC D. WHEELER,

:

Plaintiff,

:

Case No. 3:13cv00290

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

vs.
DAYTON POLICE DEPARTMENT,
et al.,

:
:

Defendants.

ORDER

Plaintiff Eric D. Wheeler, a resident of Dayton, Ohio, brings this case pro se naming
as Defendants Police Officer Michael L. Skidmore, Police Officers Hurley and Greg Mills,
the Dayton Police Department, and “several John Doe Officers.” (Doc. #2, PageID at 12).
Plaintiff challenges the Officers’ actions during an incident at his apartment in August 2013.
The Court previously granted Plaintiff’s Application to Proceed in forma pauperis
under 28 U.S.C. §1915. This case is presently before the Court for a sua sponte review to
determine whether Plaintiff’s Complaint, or any portion of it, should be dismissed because it
is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a named defendant who is immune from such relief. If the Complaint
suffers from one or more of these deficiencies, it must be dismissed under 28 U.S.C.
§1915(e)(2)(B).

Sua sponte review under § 1915(e)(2)(B) determines whether the Complaint, or any
portion of it, should be dismissed because it is frivolous, malicious, or fails to state a claim
upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). If the
Complaint raises a claim with an arguable or rational basis in fact or law, it is neither
frivolous nor malicious and it may not be dismissed sua sponte. Brand v. Motley, 526 F.3d
921, 923–24 (6th Cir.2008); see Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir.1990). A
Complaint has no arguable factual basis when its allegations are “fantastic or delusional.”
Brand, 526 F.3d at 923 (quoting Neitzke v. Williams, 490 U.S. 319, 327–28, 109 S.Ct. 1827,
(1989)); see Lawler, 898 F.2d at 1199. A Complaint has no arguable legal basis when it
presents “indisputably meritless” legal theories—for example, when the defendant is
immune from suit or when the plaintiff claims a violation of a legal interest which clearly
does not exist. See Neitzke, 490 U.S. at 327–28; see also Brand, 526 F.3d at 923. The main
issue thus presented by a sua sponte review at this early stage of the case is “whether [the]
complaint makes an arguable legal claim and is based on rational facts.” Brand, 526 F.3d at
923–24 (citing Lawler, 898 F.2d at 1198).
Plaintiff’s Complaint does not raise fantastic or delusional facts; it instead describes a
series of alleged events and circumstances grounded on rational facts. See Brand v. Motley,
526 F.3d 921, 923 (6th Cir. 2008); see also Jones v. Schmaker, 1999 WL 1252870 at *1 (6th
Cir. 1999) (“Examples of claims lacking rational facts include a prisoner’s assertion that
Robin Hood and his Merry Men deprived prisoners of their access to mail or that a genie
granted a warden’s wish to deny prisoners any access to legal texts.” (citing Lawler, 898
2

F.2d at 1198-99)).
Plaintiff alleges that Officer Skidmore and numerous other Officers approached him
while he was in his apartment, threw him against a wall, and handcuffed him “for no
apparent reason.” (Doc. #2, PageID at 16). Plaintiff declined to give the Officers permission
to search his apartment. They escorted him outside where a lady pointed at him and “clearly
stated to the police that ‘it’s not him.’” Id. The Officers then kept Plaintiff in handcuffs,
searched and emptied his pockets, took his house keys, and placed him in a police cruiser.
The Officers questioned him for about an hour, and they searched his apartment without his
consent. Finding no one inside Plaintiff’s apartment, the Officers released him and gave his
house keys back to him.
When Plaintiff’s factual allegations are fully credited and liberally construed in his
favor, see Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), the Complaint is sufficient
to avoid sua sponte dismissal at this initial stage by making an arguable legal claim based on
rational facts. See Brand, 526 F.3d at 923–24. For example, Plaintiff’s allegations, when
liberally construed in his favor, give rise to a claim that his rights under the Fourth and
Fourteenth Amendments were violated by the named Defendant Officers’ nonconsensual,
warrantless search of his home. See, e.g., Shamaeizadeh v. Cunigan, 338 F.3d 535, 546-49
(6th Cir. 2003) (and cases cited therein).
Accordingly, Plaintiff’s Complaint is not subject to sua sponte dismissal under 28
U.S.C. §1915(e)(2)(B).

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IT IS THEREFORE ORDERED THAT:
1.

Given Plaintiff’s in forma pauperis status, he is entitled to have service of
process made by the United States Marshal (USM). To avail himself of such
service, Plaintiff must properly prepare and submit to the Clerk of Court the
summons form and the USM Form 285 for each Defendant. Upon receipt of
this material from the Clerk of Court, the United States Marshal is
ORDERED to make service of process in this case under Fed. R. Civ. P.
4(c)(3). All costs of service shall be advanced by the United States.

2.

Plaintiff must serve the Defendants – or their attorney in the event an
attorney’s appearance is entered in the record – with a copy of every document
submitted for consideration by the Court. Plaintiff shall include with the
original paper to be filed with the Clerk of Court a certificate stating the date
and verifying that Plaintiff mailed a true and correct copy of any document to
defendant(s) or their attorney. Any paper received by a District Judge or
Magistrate Judge that has not been filed with the Clerk of Court or that fails to
include a certificate of service will be disregarded by the Court.

3.

Plaintiff must inform the Clerk of Court promptly of any changes of address
which he has during the pendency of this lawsuit. Failure to do so may result
in dismissal of his case for failure to prosecute.

August 30, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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