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Takiya Moore v. Police Office

May 16, 2013

TAKIYA MOORE
PLAINTIFF
v.
POLICE OFFICE
DEFENDANT



MEMORANDUM OPINION

Plaintiff Takiya Moore filed a pro se, in forma pauperis complaint. Because Plaintiff is proceeding in forma pauperis, this Court must review the complaint pursuant to 28 U.S.C. § 1915(e)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons that follow, the complaint will be dismissed.

I.

Plaintiff filed her action on a general complaint form. As the grounds for filing her action in federal court, she states: "Ftc Federal mis standard conduct tort Act"; "wrongful omusion"; "[illegible] unlawful taking of police offieir"; and "nigelance." In the caption, Plaintiff names as Defendant, "police office," and in the parties' section of the complaint form, she names, "Louisville police."

As her statement of claims, Plaintiff alleges as follows:

On the night of 6/13/2011 I was Brutly Beaten in the Head By an Ex Boy-friend I was screaming and crying and was unable to dial for the police. Some How the police arrived to the [illegible] and I was Brutley screamed and yelled at as the the office was asking question and I was given them my name thrown of the police car chonked place in chocke Hold Drugged and slamed And I told the office that I had gotten punched in My Head several times and they arrest me charge Me with criminal act And Left me in Jail unable to do anything For a Long time As I went in to Jail I was treated Real Bad I couldn't hold my self up Due to the injurys and My Body would Allow Me to say no word's as I went in Jail they Left Me on the Floor After seeing Me Falling to the Ground in their Face. After that Had Happen I was Moved to Another Housing Location Where people Began Hitting on me and at my Defence I Brought out of G pop (Geral polulation) and place in A Single cell and Left for 40 Days where my injry Began to go Down Hill As I was got on of the cell I was still Looking for Help asking For Medical Attetion Like Done in All the other time And I was told not to come to the cart pictched And Dicriminated agasinst As There Where Mean [illegible] For Me to Be seen Day When it was time to go to court I couldnt make And I was Left of the Floor Draged thourght the Hall And told that I was Mental Health.

On Day came where I tollally could move anymore I reach for Medical staff And the came in And place nose thing in my nose as the Sergan and office draged Me out By My Hand on My knees I Lost My Showes Through Me I A [illegible] cell And Accused Me of Doing Something worrg Again I tried to get up to go to court I couldn't Move well on my way I was then againg Apperhened A took to A cell And told that I was going Know where place in a cell and I Have Not A Clue After that[.] As relief, Plaintiff seeks monetary damages in the amount of $75,000; for issuance of a warrant for the assailant; and for the Court to clear her of any wrongdoing.

II.

Upon review under 28 U.S.C. § 1915(e), a district court must dismiss a case at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 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." Id. (citing Twombly, 550 U.S. at 556). "[A] district court must

(1) view the complaint in the light most favorable to the plaintiff and (2) take all well-pleaded factual allegations as true." Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). "But the district court need not accept a 'bare assertion of legal conclusions.'" Tackett, 561 F.3d at 488 (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

A. Federal Claims

Plaintiff appears to bring her action under the Federal Tort Claims Act (FTCA). The FTCA "is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment." United States v. Orleans, 425 U.S. 807, 813 (1976); 28 U.S.C. § 1346(b)(1). Because Plaintiff is not suing federal employees, the FTCA does not apply.

Notwithstanding the inapplicability of the FTCA, the Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983. "Section 1983 creates no substantive rights, but merely provides remedies for deprivations of rights established elsewhere." Flint ex rel. Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S. 635, 640 (1980). "[A] plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins,487 U.S. 42, 48 (1988). "Absent either element, a section 1983 claim will not lie." Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).

1. No policy or custom

Plaintiff sues the police office/Louisville police. Municipal departments like police offices/departments are not suable under § 1983. See Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991) (holding that a police department may not be sued under § 1983); see also Marbry v. Corr. Med. Serv., No. 99-6706, 2000 WL 1720959, at *2 (6th Cir. Nov. 6, 2000) (holding that a jail is not an entity subject to suit under ...


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