Olivier v. McMillian et al
MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr 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.)(hb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
KIM MCMILLIAN, et al.,
Case No. 3:16-cv-03288
Plaintiff Mardoche Olivier, a resident of Clarksville, Tennessee, brings this pro se, in forma
pauperis action against Kim McMillian, mayor of Clarksville; the Clarksville Police Department;
Al Rivers Ansley, Chief of Police; City of Clarksville; Jeffrey Derico, Officer; and Maxx’d Out
Towing, alleging violations of the Plaintiff’s civil rights.
(Doc. No. 1).
The Plaintiff seeks
damages from each Defendant except Officer Derico because the Plaintiff “believes that Officer
Derico was forced to take action against Mr. Olivier and would not like him to suffer.” (Id. at p.
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) 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 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
“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.”);
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.”).
According to the complaint, on April 4, 2016, Officer Derico ordered Maxx’d Out Towing
to tow the plaintiff’s car and trailer “on the authority of the Mayor[‘s] office under the City of
Clarksville codes.” (Doc. No. 1 at p. 2). The Plaintiff’s car and trailer were towed, and the Plaintiff
was cited for a city code violation. (Id.) On September 18, 2016, the plaintiff appeared in “City
Court of Clarksville” and the judge dismissed the citation, “stating that the city and officer did not
have authority to tow Mr. Olivier[‘s] property.” (Id.)
First, the Plaintiff states that he does not wish to pursue any remedies against Officer Derico.
It is unclear why Officer Derico was named as a Defendant to this action. In any event, the claims
against Officer Derico will be dismissed because Plaintiff has not alleged any constitutional
violations for which he believes Officer Derico to be liable.
Second, simply having a car towed, without more, does not rise to the level of a
constitutional violation. Kenney v. Paris Police Dep’t, 2011 WL 1582125, at *8 n.4 (E.D. Ky.
2011). The Constitution prohibits the seizure of private property by a governmental entity without
due process of law. Due process is satisfied if the state provides the Plaintiff with an adequate
post-deprivation remedy. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982). In this
regard, Tennessee’s statutory post-deprivation remedy has been found to satisfy the requirements
of due process. McLaughlin v. Weathers, 170 F.3d 577, 581-82 (6th Cir.1999). The Plaintiff does
not allege that he has been denied the due process safeguards guaranteed to him by state law.
Therefore, he has failed to state a claim upon which relief can be granted against Defendants Kim
McMillian, Maxx’d Out Towing, or any other Defendant with regard to the towing of the Plaintiff’s
car and trailer.
Next, the Plaintiff has sued Al Rivers Ansley, the Chief of Police. 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 the Chief of Police. 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 the Chief of
Police will be dismissed.
Finally, the Plaintiff has named the Clarksville Police Department and the City of Clarksville
as 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
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).
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.
In conclusion, the Court finds that the complaint fails to state a claim upon which relief can
be granted as to any Defendant. This action, therefore, will be dismissed with prejudice. 28 U.S.C.
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.
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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