United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE
se plaintiff Dannie Oliver (“Oliver”) brings
this civil rights action pursuant to 42 U.S.C. § 1983
against defendants Ohio State Highway Patrol
(“OSHP”) and Trooper C.M. Schnell
(“Schnell”). (Doc. No. 1 [“Compl.”].)
Oliver alleges that defendants violated his constitutional
rights when OSHP troopers used a trained police dog to attack
him (id. at 4). Oliver moves to proceed with this action
in forma pauperis (Doc. No. 2), and that motion is
reasons that follow, this case is dismissed. Oliver's
motion for appointment of counsel (Doc. No. 3) is moot and
denied as such.
factual allegations in Oliver's complaint are very
sparse. Oliver claims that during a traffic stop of another
individual on January 23, 2017, OSHP troopers used a trained
police dog to attack him. (Compl. at 4.) He claims that as a
result of the attack, his right leg sustained a permanent
injury and he asks that a jury award him damages.
(Id. at 5.)
Standard of Review
state a claim under § 1983, Oliver must allege that a
person acting under color of state law deprived him of his
rights secured by the Constitution and laws of the United
States. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct.
2250, 101 L.Ed.2d 40 (1988) (citation omitted). Although
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70
L.Ed.2d 551 (1982) (per curiam); Haines v. Kerner,
404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (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, lacks an arguable
basis in law or fact, or seeks monetary relief against a
defendant who is immune from such relief. Neitzke v.
Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d
338 (1989); see Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable
basis in law or fact when it is premised upon an indisputably
meritless legal theory or when the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
dismissal standard for Fed.R.Civ.P. 12(b)(6) articulated in
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) governs
dismissal for failure to state a claim under §
1915(e)(2)(B). Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). A cause of action fails to state a claim
upon which relief may be granted when it lacks plausibility
in the complaint. See Twombly, 550 U.S. at 564.
order to state a plausible claim, a pleading must contain a
short and plain statement of the claim showing that the
pleader is entitled to relief. Iqbal, 556 U.S. at
677-78. The factual allegations in the pleading must be
sufficient to raise the right to relief above the speculative
level on the assumption that all the allegations in the
complaint are true. Twombly, 550 U.S. at 555.
Plaintiff is not required to include detailed factual
allegations, but must provide more than an unadorned, the
defendant-unlawfully-harmed-me accusation. Iqbal,
556 U.S. at 678. In reviewing a complaint, the Court must
construe the pleading in the light most favorable to the
plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151
F.3d 559, 561 (6th Cir. 1998) (citing Sistrunk, 99
F.3d at 197).
against defendants OSHP and Schnell (official capacity) are
state of Ohio is immune from suit under § 1983 unless
the state has waived its Eleventh Amendment sovereign
immunity or Congress abrogated that immunity. Will v.
Mich. Dep't of State Police, 491 U.S. 58, 66, 109
S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“Section 1983
provides a federal forum to remedy many deprivations of civil
liberties, but it does not provide a federal forum for
litigants who seek a remedy against a State for alleged
deprivations of civil liberties. The Eleventh Amendment bars
such suits unless the State has waived its
immunity[.]”) (citing Welch v. Texas Dep't. of
Highways and Public Transp., 483 U.S. 468, 472-73, 107
S.Ct. 2941, 97 L.Ed.2d 389 (1987)). Congress did not abrogate
a state's Eleventh Amendment immunity for actions brought
pursuant to § 1983, and the state of Ohio has not waived
its immunity. See Pelle v. Ohio, No. 3:12 CV 95,
2012 WL 1196465, at *1 (N.D. Ohio Apr. 10, 2012) (citing
Will, 491 U.S. at 71; Johns v. Supreme Court of
Ohio, 753 F.2d 524, 527 (6th Cir. 1985)).
state of Ohio's immunity to suit under § 1983
extends to the OSHP and OSHP troopers sued in their official
capacities. See Davis v. Maughmer, No. C2-00-1415,
2002 WL 484853, at *3 (S.D. Ohio Mar. 5, 2002)
(“[C]laims against the Ohio State Highway Patrol are
claims against the State of Ohio, which is entitled to
sovereign immunity under the Eleventh Amendment.”)
(citing Welch, 483 U.S. at 472-73); Will,
491 U.S. at 71 (“[N]either state nor its officials
acting in their official capacities are ‘persons'
under [ § 1983].”); see also Mattox v. City of
Jefferson, No. 1:04 CV 2257, 2007 WL 120651, at *2 (N.D.
Ohio Jan. 10, 2007) (the OSHP is an arm of the state of Ohio