United States District Court, W.D. Kentucky, Paducah Division
B. Russell, Senior Judge United States District Court.
Michael Wayne Rorie filed this pro se civil-rights
action (DN 1) pursuant to 42 U.S.C. § 1983. Since a
similar pro se action Plaintiff originally filed in
Christian County Circuit Court was removed to this Court,
Civil Action No. 5:17-CV-162-TBR, the Court recently ordered
that the cases be consolidated and that case be dismissed (DN
5). The original complaint from Civil Action No.
5:17-CV-162-TBR has been docketed in the present case as
“Civil-Rights Complaint from Consolidated Case”
(DN 6). This action is before the Court for initial review of
the complaint (DNs 1 & 6) pursuant to 28 U.S.C. §
1915(e) and McGore v. Wriggles worth, 114 F.3d 601,
608 (6th Cir. 1997), overruled on other grounds by Jones
v. Bock, 549 U.S. 199 (2007). For the reasons that
follow, the Court will dismiss this action.
SUMMARY OF CLAIMS
brings this action against James Dragoo, a Sergeant with the
Christian County Sheriff's Department (CCSD); Clevin
Robinson, a former Deputy Sheriff with the CCSD; Jack
Rolands, a Sergeant with the CCSD; and Livy Leavell, the
Christian County Sheriff. Plaintiff does not state in what
capacity he is suing Defendants. Plaintiff states that the
alleged wrongful events occurred on September 28, 2016. He
describes what happened as follows:
My next door neighbor (James Dragoo) Alleges he seen me
entering my home and He thought I had an EPO against me (in
which I didn't). Instead of calling city police he called
5 other Sheriff Deputies & K9 to apprehend me. With no
search warrant they broke into home locating me upstairs in
Attic space. I tried to surrender but officers refused And
put k-9 on me, Tazzed me 5 times, broke my nose, kicked my
shoulder, head and stomach until I passed out for 10-20
seconds then was cuffed And drug down flight of stairs then
threw in front yard until Ambulance arrived. Once finding out
that I had no EPO they put a made up charge of 1st
Degree Assualt on service Animal & resisting arrest. I
did 100 days in jail And then all charges were dismissed
states that as a result of the incident he (1) suffered a
broken nose; (2) received 6 staples in his left knee from a
K-9 bite; (3) tore his “LabreAl in shoulder”
which required two surgeries; (4) has equilibrium issues
“due to be[ing] tazzed 5 times And kicked in
head”; and (5) suffered Post Traumatic Stress Disorder
and emotional distress. Plaintiff asserts violations of the
Fourth and Eighth Amendments. Although unclear, it appears
that Plaintiff may be asserting the following additional
claims: (1) “Knowingly making a false statement”;
(2) “Aiding Another (officer) to violate a rule”;
(3) “Harrassment”; (4) “Abuse of
Authority”; (5) “Abuse of Process”; and (6)
retaliation. As relief, Plaintiff seeks justice, compensatory
and punitive damages, and asks for “a formal
investigation [to] be completed.”
STANDARD OF REVIEW
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)).
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 v. M & G Polymers,
USA, LLC, 561 F.3d at 488 (quoting Columbia Nat.
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.
1995)). The court's duty “does not require [it] to
conjure up unpled allegations, ” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a
claim for a plaintiff. Clark v. Nat'l
Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). To command otherwise would require the Court “to
explore exhaustively all potential claims of a pro
se plaintiff, [and] would also transform the district
court from its legitimate advisory role to the improper role
of an advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
names James Dragoo, Clevin Robinson, Jack Rolands, and Livy
Leavell as Defendants in this action. However, with the
exception of stating that Defendant Dragoo called the
sheriff's office, an action that fails to state a
constitutional violation, Plaintiff makes no allegations
against these Defendants in his complaint. “It is
axiomatic that a complaint under 42 U.S.C. § 1983 must
show a causal connection between the named defendants and the
alleged constitutional deprivation . . . .” Cox v.
Barksdale, No. 86-5553, 1986 WL 18435, at *1 (6th Cir.
Nov. 13, 1986) (citing Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984); Dunn v. Tennessee, 697
F.2d 121, 128 (6th Cir. 1982)). The specific facts of the
complaint must explain how the defendants are personally
responsible for the alleged injuries. Smith v. Rowe,
761 F.2d 360, 369 (7th Cir. 1985). “Where a complaint
alleges no specific act or conduct on the part of the
defendant and the complaint is silent as to the defendant
except for his name appearing in the caption, the complaint
is properly dismissed, even under the liberal construction to
be given pro se complaints.” Potter v. Clark,
497 F.2d 1206, 1207 (7th Cir. 1974); see also Copeland v.
Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (per curiam)
(stating that personal involvement by the defendant is an
essential element in a § 1983 cause of action asserting
a constitutional deprivation); LeMasters v. Fabian,
No. 09-702 DSD/AJB, 2009 WL 1405176, at *2 (D. Minn. May 18,
2009) (“To state an actionable civil rights claim
against a government official or entity, a complaint must
include specific factual allegations showing how that
particular party's own personal acts or
omissions directly caused a violation of the plaintiff's
constitutional rights.”) (emphasis in original).
complaint fails to state the involvement by each Defendant in
the alleged wrongdoing or state how each Defendant is
responsible for the asserted constitutional deprivations.
Accordingly, Plaintiff's complaint fails to state a claim
as to the named Defendants.
Court notes that it gave Plaintiff an opportunity to correct
this deficiency in his complaint, but he failed to do so. On
January 25, 2018, the Court entered an Order (DN 7) noting
that Plaintiff's complaint failed to state the capacity
in which he was suing Defendants and failed to set forth what
wrongful actions were performed by each Defendant. The Order
gave Plaintiff 30 days to file an amended complaint
indicating in what capacity he was suing Defendants and
setting forth facts sufficient to show how each Defendant was
involved in the wrongful acts about which Plaintiff
complains. In the Order, the Court warned Plaintiff that his
failure to comply with the Order may result in dismissal of