Hudson v. City of Cleveland Heights, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Darryl Hudson, Case No. 1:21cv502

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

MEMORANDUM OPINION AND

City of Cleveland Heights, Ohio, ORDER

Defendant.

Pro se Plaintiff Darryl Hudson (“Hudson”) has filed a civil rights complaint in this matter

against the City of Cleveland Heights, Ohio (“Cleveland Heights”) (Doc. Nos. 1 and 3). Hudson

alleges Cleveland Heights violated his due process rights, and he seeks monetary relief.

I. Background

Hudson filed a civil rights complaint against Cleveland Heights for “destroying a

house/dwelling.” (Doc. No. 3 at 1.) In his complaint, Hudson alleged that Alan Butler (“Butler”),

“employee [of] City of Cleveland Heights” entered Hudson’s property located in Cleveland

Heights without Hudson’s consent and performed an unauthorized interior inspection. (Doc. No.

3 at 2.) It appears that Hudson contends Butler presented a false inspection report to the city’s

Nuisance Abatement Board of Review (“the Board”), which noted excessive water damage and a

flooded basement, and he prevented Hudson from turning the water back on, per the Board’s

instructions. The property was ultimately placed on the “public nuisance list.” (Id. at 2-3.) Hudson

further alleges that Butler did not follow the rules “set in place by the Nuisance Board,” the Board

did not follow the law or city ordinance, and Cleveland Heights did not “prove its burden of proof

at the appeal’s hearing.” Id. According to the complaint, “[t]hat is definitely a deprivation of my

property and a constitutional violation” when the property was placed “back on the public nuisance

list without a response from the homeowner.” Id. at 3.

II. Standard of Review

By separate order, the Court has granted this pro se plaintiff’s motion to proceed in forma

pauperis (Doc. No. 2). Accordingly, because Hudson is proceeding in forma pauperis, his

complaint is before the Court for initial screening under 28 U.S.C. § 1915(e)(2). Under this statute,

the Court is expressly required to review all in forma pauperis actions and to dismiss before service

any such action the Court determines 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.

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).

To survive scrutiny under 28 U.S.C. § 1915(e)(2), a pro se complaint must set forth

sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.

See id. at 471 (holding that the Fed. R. Civ. P. 12(b)(6) dismissal standard articulated in Ashcroft

v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) and Bell Atl. Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) governs dismissals under §

1915(e)(2)(B)). The factual allegations in the pleading “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[.]”

Twombly, 550 U.S. at 555 (citations omitted). The plaintiff must provide more than “an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A court is “not bound

to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.

265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986).

Pro se pleadings are liberally construed and held to less stringent standards than formal

pleadings drafted by lawyers. Boag v. MacDougall, 454 U.S. 364, 365 (1982); Haines v. Kerner,

404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed.2d 652 (1972). Courts are not required, however, to

accept as true factual allegations that are clearly irrational or wholly incredible. Denton v.

Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)

A claim has facial plausibility when there is enough factual content present to allow “the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. When a claim lacks “plausibility in th[e] complaint,” that cause of action

fails to state a claim upon which relief can be granted. Twombly, 550 U.S. at 564.

When 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). The Court is not required, however, to conjure unpleaded facts

or construct claims against defendants on behalf of a pro se plaintiff. See Grinter v. Knight, 532

F.3d 567, 577 (6th Cir. 2008) (citation omitted); Beaudett v. City of Hampton, 775 F.2d 1274,

1277-78 (4th Cir. 1985).

III. Law and Analysis

Hudson brings this claim pursuant to 42 U.S.C. § 1983, purportedly alleging that Cleveland

Heights, through the actions of its employee, Alan Butler, deprived him of due process of the laws

when his residential property was “destroyed.” To state a claim under § 1983, Hudson must allege

that a person acting under state law deprived him of a right, privilege, or immunity secured by the

Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42 (1988).

Local governments may not be sued under 42 U.S.C. § 1983 for an injury inflicted solely

by employees or agents under a respondeat superior theory of liability. See Monell v. Department

of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Rather, “it is when

execution of a government’s policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury that the government

as an entity is responsible under § 1983.” Id. at 694. A municipality can therefore be held liable

when it unconstitutionally “implements or executes a policy statement, ordinance, regulation, or

decision officially adopted by that body’s officers.” Id. at 690; DePiero v. City of Macedonia, 180

F.3d 770, 786 (6th Cir. 1999).

To establish this claim, a plaintiff must prove that (1) a constitutional violation occurred;

and (2) Cleveland Heights is responsible for that violation. See Doe v. Claiborne County, 103 F.3d

495, 505-06 (6th Cir. 1996)). Concerning the second element, “[a] plaintiff ... must identify the

policy, connect the policy to [Cleveland Heights] itself, and show that the particular injury was

incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358,

364 (6th Cir. 1994)).

Here, the complaint contains no suggestion of a specific custom or policy of Cleveland

Heights that may have led to a violation of Hudson’s constitutional rights. Hudson therefore fails

to state a claim upon which relief may be granted against Cleveland Heights.

Even if Hudson properly alleged that a constitutional violation had somehow resulted from

a custom or policy of Cleveland Heights, Hudson still fails to state a claim for a violation of his

due process rights based on the facts as alleged in his complaint.

It appears that Hudson alleges that Cleveland Heights “destroyed” his residential property,

thus depriving him of his property, without procedural due process. The Fifth Amendment

provides that “no person shall be deprived of life, liberty, or property, without due process of law.”

U.S. Const. amend. V. The Fourteenth Amendment makes the Due Process Clause applicable to

the states. U.S. Const. amend. XIV. And the Due Process Clause sets the procedural minimum for

deprivations of life, liberty, or property, and bars “certain government actions regardless of the

fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106

S. Ct. 662, 88 L. Ed. 2d 662 (1986). It does not prohibit every deprivation by the government of a

person’s life, liberty, or property. Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). And

only those deprivations that are conducted without due process are subject to suit under 42 U.S.C.

§ 1983. Id.

To prevail on a procedural due process claim, a plaintiff must plead and prove either (1)

that he was deprived of property as a result of an established state procedure that itself violates due

process rights; or (2) that the defendant deprived him of a protected liberty or property interest

pursuant to a random and unauthorized act and available state remedies would not be adequate to

redress the deprivation of property. Jefferson v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d 583, 588

(6th Cir. 2004); Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991); see Vicory v. Walton,

721 F.2d 1062, 1064 (6th Cir. 1983). The plaintiff bears the burden of demonstrating that state

remedies for redressing the alleged wrong are inadequate. Vicory, 721 F.2d at 1066 (“In a

procedural due process case under section 1983, the plaintiff must attack the state’s corrective

procedure as well as the substantive wrong.”).

Here, Hudson does not indicate that he is challenging a specific established state procedure.

Rather, it appears that Hudson is asserting that his property was destroyed due to unauthorized acts

of the defendant’s employee, Alan Butler. But there is no indication from the complaint that

Hudson has sought relief from the Ohio courts regarding his property, and Hudson has not alleged

that the available state remedies are inadequate to redress the deprivation of his property. Hudson

therefore fails to state a cognizable constitutional due process claim.

IV. Conclusion

Accordingly, Hudson’s due process claim against Cleveland Heights is dismissed pursuant

to 28 U.S.C. § 1915(e)(2). The Court further certifies, pursuant to 28 U.S.C. §1915(a)(3), that an

appeal from this decision could not be taken in good faith.

IT IS SO ORDERED.

s/Pamela A. Barker ______

PAMELA A. BARKER

Date: 6/30/2021 U. S. DISTRICT JUDGE