Oliver v. City of Clarksville, Police Department et al

Filing 3

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 2/10/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARDOCHE OLIVIER,
Plaintiff,
v.
CITY OF CLARKSVILLE, POLICE
DEPARTMENT, et al.,
Defendants.

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No. 3:16-cv-03287
Chief Judge Sharp

MEMORANDUM
Plaintiff Mardoche Olivier, a resident of Clarksville, Tennessee, brings this pro se, in forma
pauperis action against the “City of Clarksville, Police Department”, Deputy Chief f/n/u Gray,
Darren Koski, and Bradley Holder, alleging violations of the Plaintiff’s civil rights.1 (Docket No.
1). The Plaintiff seeks $100,000 fines from the City of Clarksville and “the officers,” as well as
attorney fees. (Id. at p. 3).
I.

Required Screening of the Complaint
The Plaintiff is proceeding as a pauper in this action; therefore, the Court must conduct an

initial review of the complaint under 28 U.S.C. § 1915(e)(2)(B) and dismiss it or any portion of it
that is frivolous or malicious, fails to state a claim for which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief.

In assessing whether the

complaint in this case states a claim on which relief may be granted, the Court applies the standards
under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill

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It bears noting that, since January 1, 2017, the Plaintiff has filed at least ten separate pro se lawsuits in this

Court.

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v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that “the dismissal standard articulated in
Iqbal and Twombly governs dismissals for failure to state a claim under § 1915(e)(2)(B)(ii)] because
the relevant statutory language tracks the language in Rule 12(b)(6)”).
“Accepting all well-pleaded allegations in the complaint as true, the Court ‘consider[s] the
factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.’”
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration
in original). “[P]leadings that . . . are no more than conclusions[] are not entitled to the assumption
of truth. While legal conclusions can provide the framework of a complaint, they must be supported
by factual allegations.” Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some
factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of
providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim
rests.”).
“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383 (internal
quotation marks and citation omitted). Pro se litigants, however, are not exempt from the
requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“[A] court cannot
create a claim which [a plaintiff] has not spelled out in his pleading”) (internal quotation marks and
citation omitted); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming sua
sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, “[n]either this court
nor the district court is required to create Payne’s claim for her”); cf. Pliler v. Ford, 542 U.S. 225,
231 (2004) (“District judges have no obligation to act as counsel or paralegal to pro se litigants.”);

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Young Bok Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (“[W]e decline to affirmatively
require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would
that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into
advocates for a particular party. While courts are properly charged with protecting the rights of all
who come before it, that responsibility does not encompass advising litigants as to what legal
theories they should pursue.”).
II.

Alleged Facts
According to the complaint, on December 9, 2016, after the Plaintiff and Troy Lozano filed

suit against the City of Clarksville, more than one unidentified “officers” forced the Plaintiff and Mr.
Lozano out of the Plaintiff’s car and questioned the two men about the Plaintiff “calling threts [sic]
to the Mayor’s office.” (Docket No. 1 at p. 2). The complaint alleges that the Plaintiff demanded
that the officers produce a warrant. (Id.) The Plaintiff believes his Fourth, Fifth, and Fourteenth
Amendment rights were violated during this exchange. (Id. at p. 1).
III.

Analysis
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must plead and prove that a

defendant, while acting under color of state law, deprived him or her of some right or privilege
secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535
(1981).
First, the Plaintiff names Deputy Chief Gray, Darren Koski, and Bradley Holder as
Defendants. It is a basic pleading essential that a plaintiff must attribute factual allegations to
particular defendants. See Twombly, 550 U.S. at 544 (holding that, in order to state a claim, a
plaintiff must make sufficient allegations to give a defendant fair notice of the claim). The Plaintiff
has failed to attribute any conduct at all to Deputy Chief Gray. Similarly, although the complaint

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alleges that “officers” forced the Plaintiff out of his vehicle and questioned the Plaintiff about threats
to the mayor, the complaint does not identify the officers involved in the December 9, 2016, incident
by name. Where a defendant is named but the plaintiff fails to allege that the defendant engaged
in any specific conduct, the complaint is subject to dismissal, even under the liberal construction
afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir.
2004) (dismissing complaint where plaintiff failed to allege how any named defendant was involved
in the violation of his rights). Therefore, the Plaintiff’s claims against Deputy Chief Gray, Darren,
and Bradley will be dismissed.
Even assuming arguendo that the Plaintiff had identified Koski and Holder as the officers
involved in the event, as relief for the alleged wrongs committed by the officers, the complaint seeks
money damages from the officers in their official capacities only. (Docket No. 1 at p. 3). A suit
against a police officer in his official capacity is a suit against the entity by whom the officer is
employed. A fair reading of the instant pro se complaint is that officers Koski and Holder are
employees of the City of Clarksville or the City’s police department
The Plaintiff has named the “City of Clarksville, Police Department” as a Defendant or as
two separate Defendants to this action. However, the Clarksville Police Department is not a suable
entity under § 1983. See Mathes v. Metro. Gov't of Nashville & Davidson Cnty., No. 3:10–cv–0496,
2010 WL 3341889, at *2 (M.D. Tenn. Aug. 25, 2010) (“[F]ederal district courts in Tennessee have
frequently and uniformly held that police departments and sheriff's departments are not proper
parties to a § 1983 suit.”)(collecting cases)). Thus, the Plaintiff’s claims against the Clarksville
Police Department must be dismissed.
While the City of Clarksville is a suable entity, it is responsible under § 1983 only for its
“own illegal acts. [It is] not vicariously liable under § 1983 for [its] employees' actions.” Connick

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v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (internal citations and
quotation marks omitted). Under § 1983, a municipality can only be held liable if the plaintiff
demonstrates that the alleged federal violation was a direct result of the city's official policy or
custom. Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir.2013) (citing Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 693, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); Regets v. City of Plymouth, 568 Fed.
Appx. 380, 2014 WL 2596562, at *12 (6th Cir. 2014) (quoting Slusher v. Carson, 540 F.3d 449,
456-57 (6th Cir. 2008)). A plaintiff can make a showing of an illegal policy or custom by
demonstrating one of the following: (1) the existence of an illegal official policy or legislative
enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision; or (4) the existence of a custom or
tolerance or acquiescence of federal rights violations. Burgess, 735 F.3d at 478.
The inadequacy of police training only serves as a basis for § 1983 liability where the failure
to train amounts to deliberate indifference to the rights of persons with whom the police come into
contact. Slusher, 540 F.3d at 457. To establish deliberate indifference, the plaintiff may show prior
instances of unconstitutional conduct demonstrating that the governmental entity has ignored a
history of abuse and was clearly on notice that the training in this particular area was deficient and
likely to cause injury. Id.; see also Gregory v. City of Louisville, 444 F.3d 725, 752-53 (6th Cir.
2006). In the alternative, where the constitutional violation was not alleged to be part of a pattern
of past misconduct, a supervisory official or a municipality may be held liable only where there is
essentially a complete failure to train the police force or training that is so reckless or grossly
negligent that future police misconduct is almost inevitable or would properly be characterized as
substantially certain to result. Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir.1982).

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Here, the allegations of the complaint are insufficient to state a claim for municipal liability
against the City of Clarksville under § 1983. The complaint does not identify or describe any of the
City’s policies, procedures, practices, or customs relating to training; it does not identify any
particular shortcomings in that training or how those shortcomings caused the alleged violations of
the plaintiff’s rights; and it does not identify any other previous instances of similar violations that
would have put the City of Clarksville on notice of a problem. See Okolo v. Metropolitan Gov’t of
Nashville, 892 F. Supp.2d 931, 944 (M.D. Tenn. 2012); Hutchison v. Metropolitan Gov’t of
Nashville, 685 F. Supp.2d 747, 751 (M.D. Tenn. 2010); Johnson v. Metropolitan Gov’t of Nashville,
No. 3:10-cv-0589, 2010 WL 3619790, at **2-3 (M.D. Tenn. Sept. 13, 2010). Accordingly, the
Court finds that the complaint does not contain sufficient allegations to state a claim for municipal
liability against the City of Clarksville. Any such claim will be dismissed.
Finally, in stating his grounds for filing this lawsuit, the Plaintiff cites 18 U.S.C. §§ 241 and
242, alleging a “conspiracy against rights.” (Docket No. 1 at p. 1). The Sixth Circuit has defined
a civil conspiracy under 42 U.S.C § 1983 as follows:
A civil conspiracy is an agreement between two or more persons to
injure another by unlawful action. Express agreement among all the
conspirators is not necessary to find the existence of a civil
conspiracy. Each conspirator need not know all of the details of the
illegal plan or all of the participants involved. All that must be
shown is that there is a single plan, that the alleged co-conspirator
shared in the general conspiratorial objective, and that an overt act
was committed in furtherance of the conspiracy that caused injury to
the complainant.
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). Conspiracy claims must be pled with a
degree of specificity. Hamilton v. City of Romulus, 409 Fed. Appx. 826, 835-36 (6th Cir. 2010).
Vague and conclusory allegations unsupported by material facts are insufficient, although
circumstantial evidence of an agreement among all conspirators may provide adequate proof. Id.
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As to the existence of a conspiracy to interrogate, detain, arrest or incarcerate the plaintiff,
there are no allegations in the complaint, much less any allegations with the requisite specificity to
sustain a civil conspiracy claim. Thus, the Plaintiff’s civil conspiracy claims as to all Defendants
will be dismissed.
IV.

Conclusion
In conclusion, the Court finds that the complaint fails to state a claim upon which relief can

be granted. This action, therefore, will be dismissed. 28 U.S.C. § 1915(e)(2).
For the same reasons that the Court dismisses this action, the Court finds that an appeal of
this action would not be taken in good faith. The Court therefore certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal in this matter by the Plaintiff would not be taken in good faith, and the
Plaintiff will not be granted leave by this Court to proceed on appeal in forma pauperis.
An appropriate order will enter.

Kevin H. Sharp
Chief United States District Judge

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