United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
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. 3).
Required Screening of the Complaint
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)”).
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.”).
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
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.”
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.
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.
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
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.
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 ...