Opinion
Case No. 3:13cv00290
08-30-2013
ERIC D. WHEELER, Plaintiff, v. DAYTON POLICE DEPARTMENT, et al., Defendants.
District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington
ORDER
Plaintiff Eric D. Wheeler, a resident of Dayton, Ohio, brings this case pro se naming as Defendants Police Officer Michael L. Skidmore, Police Officers Hurley and Greg Mills, the Dayton Police Department, and "several John Doe Officers." (Doc. #2, PageID at 12). Plaintiff challenges the Officers' actions during an incident at his apartment in August 2013.
The Court previously granted Plaintiff's Application to Proceed in forma pauperis under 28 U.S.C. §1915. This case is presently before the Court for a sua sponte review to determine whether Plaintiff's Complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a named defendant who is immune from such relief. If the Complaint suffers from one or more of these deficiencies, it must be dismissed under 28 U.S.C. §1915(e)(2)(B).
Sua sponte review under § 1915(e)(2)(B) determines whether the Complaint, or any portion of it, should be dismissed because it is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). If the Complaint raises a claim with an arguable or rational basis in fact or law, it is neither frivolous nor malicious and it may not be dismissed sua sponte. Brand v. Motley, 526 F.3d 921, 923-24 (6th Cir.2008); see Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir.1990). A Complaint has no arguable factual basis when its allegations are "fantastic or delusional." Brand, 526 F.3d at 923 (quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, (1989)); see Lawler, 898 F.2d at 1199. A Complaint has no arguable legal basis when it presents "indisputably meritless" legal theories—for example, when the defendant is immune from suit or when the plaintiff claims a violation of a legal interest which clearly does not exist. See Neitzke, 490 U.S. at 327-28; see also Brand, 526 F.3d at 923. The main issue thus presented by a sua sponte review at this early stage of the case is "whether [the] complaint makes an arguable legal claim and is based on rational facts." Brand, 526 F.3d at 923-24 (citing Lawler, 898 F.2d at 1198).
Plaintiff's Complaint does not raise fantastic or delusional facts; it instead describes a series of alleged events and circumstances grounded on rational facts. See Brand v. Motley, 526 F.3d 921, 923 (6th Cir. 2008); see also Jones v. Schmaker, 1999 WL 1252870 at *1 (6th Cir. 1999) ("Examples of claims lacking rational facts include a prisoner's assertion that Robin Hood and his Merry Men deprived prisoners of their access to mail or that a genie granted a warden's wish to deny prisoners any access to legal texts." (citing Lawler, 898 F.2d at 1198-99)).
Plaintiff alleges that Officer Skidmore and numerous other Officers approached him while he was in his apartment, threw him against a wall, and handcuffed him "for no apparent reason." (Doc. #2, PageID at 16). Plaintiff declined to give the Officers permission to search his apartment. They escorted him outside where a lady pointed at him and "clearly stated to the police that 'it's not him.'" Id. The Officers then kept Plaintiff in handcuffs, searched and emptied his pockets, took his house keys, and placed him in a police cruiser. The Officers questioned him for about an hour, and they searched his apartment without his consent. Finding no one inside Plaintiff's apartment, the Officers released him and gave his house keys back to him.
When Plaintiff's factual allegations are fully credited and liberally construed in his favor, see Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), the Complaint is sufficient to avoid sua sponte dismissal at this initial stage by making an arguable legal claim based on rational facts. See Brand, 526 F.3d at 923-24. For example, Plaintiff's allegations, when liberally construed in his favor, give rise to a claim that his rights under the Fourth and Fourteenth Amendments were violated by the named Defendant Officers' nonconsensual, warrantless search of his home. See, e.g., Shamaeizadeh v. Cunigan, 338 F.3d 535, 546-49 (6th Cir. 2003) (and cases cited therein).
Accordingly, Plaintiff's Complaint is not subject to sua sponte dismissal under 28 U.S.C. §1915(e)(2)(B).
IT IS THEREFORE ORDERED THAT:
1. Given Plaintiff's in forma pauperis status, he is entitled to have service of process made by the United States Marshal (USM). To avail himself of such service, Plaintiff must properly prepare and submit to the Clerk of Court the summons form and the USM Form 285 for each Defendant. Upon receipt of this material from the Clerk of Court, the United States Marshal is ORDERED to make service of process in this case under Fed. R. Civ. P. 4(c)(3). All costs of service shall be advanced by the United States.
2. Plaintiff must serve the Defendants - or their attorney in the event an attorney's appearance is entered in the record - with a copy of every document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date and verifying that Plaintiff mailed a true and correct copy of any document to defendant(s) or their attorney. Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk of Court or that fails to include a certificate of service will be disregarded by the Court.
3. Plaintiff must inform the Clerk of Court promptly of any changes of address which he has during the pendency of this lawsuit. Failure to do so may result in dismissal of his case for failure to prosecute.
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Sharon L. Ovington
Chief United States Magistrate Judge