United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE.
Plaintiff Cyril Sydney Overall filed this Bivens action
against United States Department of Housing and Urban
Development (“HUD”) Secretary Ben Carson. In his
Complaint, Plaintiff contends the Cleveland Metropolitan
Housing Authority (“CMHA”) is not responsive to
his complaints about thefts from his apartment, and Carson,
as the Secretary of HUD, is ultimately responsible for CMHA.
He asserts violation of Article IV, Section 2 of the United
States Constitution and seeks an Order from this Court
requiring CMHA take appropriate action to ensure better
security at his building. For the reasons discussed herein,
Plaintiff's Complaint is hereby dismissed pursuant to 28
U.S.C. § 1915(a)(3) for failure to state a claim upon
which relief could be granted.
claims he moved into the Lorain Square apartments, which are
owned and operated by CMHA, on November 30, 2011. He alleges
that since March 2013, he has experienced a No. of small
thefts from his apartment, including two dress shirts, dress
pants, a book, a bottle of Listerine, and small food items.
He blames gang activity for his losses which he totals at
$500.00. He also suggests these thefts are related to a
previous theft of his cellular telephone from the Lakewood
Public Library. Plaintiff claims that despite multiple
letters and communication to the CMHA Police Department, they
have not yet responded in the manner he expected. Plaintiff
then wrote to other organizations, including the Federal
Bureau Investigation, Senator Sherrod Brown, and Ben Carson.
Carson did not respond in a manner that resolved the problem
to Plaintiff's satisfaction, and as a result, Plaintiff
brought this action against him. Plaintiff asserts he is
entitled to relief under Article IV, Section 2 of the United
States Constitution and asks the Court to order CMHA to
provide better security at his apartment complex.
pro se pleadings are liberally construed, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972),
the Court is required to dismiss an in forma pauperis action
under 28 U.S.C. §1915(e) if it fails to state a claim
upon which relief can be granted, or if it lacks an arguable
basis in law or fact. Neitzke v. Williams, 490 U.S.
319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th
Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). An action has no arguable
basis in law when a Defendant is immune from suit or when a
Plaintiff claims a violation of a legal interest which
clearly does not exist. Neitzke, 490 U.S. at 327. An
action has no arguable factual basis when the allegations are
delusional or rise to the level of the irrational or
“wholly incredible.” Denton v.
Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898
F.2d at 1199.
determining whether the Plaintiff has stated a claim upon
which relief can be granted, the Court must construe the
Complaint in the light most favorable to the Plaintiff,
accept all factual allegations as true, and determine whether
the Complaint contains “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
Plaintiff's obligation to provide the grounds for relief
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. Although a Complaint need
not contain detailed factual allegations, its “factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the Complaint are true.” Id.
The Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986). The
Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009), further explains the
“plausibility” requirement, stating that “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.” Iqbal, 556 U.S. at 678. Furthermore,
“the plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a Defendant acted
unlawfully.” Id. This determination is a
“context-specific task that requires the reviewing
Court to draw on its judicial experience and common
initial matter, Plaintiff fails to identify any particular
individual constitutional right he believes Carson violated.
He claims he is entitled to relief under Article IV, Section
2 of the United State Constitution; however, none of the
clauses in this Article are relevant or applicable to the
facts alleged in this case. Principles requiring generous
construction of pro se pleadings are not without limits. See
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989);
Beaudett v. City of Hampton, 775 F.2d 1274, 1277
(4th Cir. 1985). A Complaint must contain either direct or
inferential allegations respecting all the material elements
of some viable legal theory to satisfy federal notice
pleading requirements. See Schied v. Fanny Farmer Candy
Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). District
courts are not required to conjure up questions never
squarely presented to them. Beaudett, 775 F.2d at
1278. Even liberally construed, the Complaint does not
sufficiently state a plausible federal constitutional claim
which Plaintiff can base a Bivens action.
even if Plaintiff had identified a viable cause of action, he
has not alleged facts suggesting he can hold this Defendant
liable for that violation. Plaintiff cannot establish the
liability of any Defendant absent a clear showing that the
Defendant was personally involved in the activities which
form the basis of the alleged unconstitutional behavior.
Rizzo v. Goode, 423 U.S. 362, 371 (1976);
Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381
(6th Cir. Sept. 20, 1995). Plaintiff alleges CMHA was not
responsive to his reports of thefts of his personal property.
Carson is named as a Defendant only because he is the
Secretary of HUD and CMHA receives funding from HUD. This is
not sufficient to establish liability in a Bivens action.
Jones v. City of Memphis, 586 F.2d 622, 625 (6th
Cir. 1978). A Defendant can only be held liable for his own
actions. The Complaint simply contains no facts which
reasonably associate Carson with CMHA's response to his
reports of criminal activity at his apartment complex.
Plaintiff's Application to Proceed In Forma Pauperis (ECF
No. 2) is granted and this action is dismissed pursuant to 28
U.S.C. §1915(e). The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that an appeal from this decision
could not be taken in good faith.