United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
Terence P. Kemp United States Magistrate Judge
Teddy Glen Bostic Senior filed this action against Jeanette
Arlene Davis, a private citizen, and against the Columbus
Police Department, Columbus Police Chief Kimberly Jacobs, and
Columbus Police Officer Ernest Rice
(“Defendants”). This matter is now before the
Court on Ms. Davis' motion to dismiss for lack of subject
matter jurisdiction. (Doc. 25). For the following reasons,
the motion will be granted.
Bostic is proceeding pro se and in forma
pauperis, and has filed an original complaint followed
by two amended complaints (Docs. 2, 4, and 21). The
Magistrate Judge recommended that original complaint be
dismissed on initial screening under 28 U.S.C.
§1915(e)(2) for failure to state a claim, with leave to
amend the complaint to correct the deficiencies. (Doc. 3).
Mr. Bostic filed an amended complaint on March 14, 2016 (Doc.
4), so the Report and Recommendation (Doc. 3) was deemed to
be moot. (Doc. 5). The first amended complaint alleged that
Ms. Davis, Mr. Bostic's ex-wife, conspired against him
with the City of Columbus Police Department. This conspiracy,
according to the complaint, involved Ms. Davis' being
assisted by police officers in a harassment campaign that Mr.
Bostic describes as a “relentless daily quest without
mercy to get the plaintiff to commit suicide.” He
accuses both Chief Jacobs and Officer Rice of conspiring with
Ms. Davis in this quest, which included a warrantless entry
into his home in August of 2011 in which one or more of the
defendants “went through his papers” and attacked
his pet dogs. The complaint also alleges that in November of
2015, an unknown assailant attacked Mr. Bostic in the
presence of a Columbus police officer and Ms. Davis in an
effort to prevent him from filing this case.
April 28, 2016, the Magistrate Judge issued a Report and
Recommendation (Doc. 6) concluding that the alleged incident
of a warrantless entry into his home in August 2011 was
time-barred, noting that more than two years had passed since
Mr. Bostic knew or should have known of that injury. See
Sevier v. Turner, 742 F.2d 262, 272-73 (6th Cir. 1984).
The Court further concluded that claims arising out of the
alleged assault in November, 2015, were not time barred, and
for the purposes of initial analysis of the complaint it
could be inferred that the November, 2015 incident was a part
of the alleged conspiracy dating back to 2005. The Magistrate
Judge recommended that all of the claims in the amended
complaint arising out of the alleged incident in August, 2011
be dismissed as time-barred, but that the Court order service
of process to be made with respect to the November, 2015
incident. That Report and Recommendation was adopted by the
District Judge on June 17, 2016. (Doc. 9).
the defendants filed a motion to strike certain irrelevant
language from the first amended complaint (Doc. 16), which
the Court granted. It also directed Mr. Bostic to file a
second amended complaint. (Doc. 20). On March 8, 2017, Mr.
Bostic filed a second amended complaint, which alleged
essentially the same broad facts as the prior complaint with
respect to the purported campaign of harassment against him
by Ms. Davis, Chief Jacobs, and Officer Rice. The facts
alleged regarding the physical attack on him can be
summarized as follows.
approximately 6:40 a.m. on Monday, November 16, 2015, Mr.
Bostic was pulling into the parking lot of his apartment
complex when a vehicle without its headlights on nearly hit
his car. Mr. Bostic yelled to the female driver of that car
that she should turn her headlights on and then proceeded to
park his car. The driver whom he had shouted at then backed
up where Mr. Bostic was parking his car and engaged in a
verbal altercation with him, asking what “his
problem” was. During this altercation, Mr. Bostic was
approached by a large man who hit him in his throat and
Adam's apple with the heel of his hand. He asserts that
the force of the blow caused him to temporarily lose his
vision and fall back against his car. The man who had hit Mr.
Bostic then told the female who he had argued with that
“it was taken care of.” It was at that time Mr.
Bostic recognized the passenger in the car with the female
driver to be Ms. Davis. Mr. Bostic then called the Columbus
Police Department and reported the incident, but the police
officers left without investigation. He called the police a
second time that morning and an officer arrived, discussed
the incident with Mr. Bostic, and then left. Mr. Bostic
asserts that he later found out that the woman driving the
vehicle that morning and the man who hit him were both
Columbus police officers.
Bostic raises new allegations in the most recent amended
complaint. He asserts that his grandson was killed in a
motorcycle accident in California in July of 2016 and his son
was killed in an attack while attempting to buy marijuana on
a bicycle in Columbus in January of 2017. Mr. Bostic states
that these “were not accidents” but were
“premeditated murders.” He claims that, with
respect to the death of his son in Columbus, the men involved
in his son's death were Columbus police officers in
“civilians [sic] clothes, ” one being Officer
Rice. Mr. Bostic states that there were also two F.B.I.
agents “who knew this was going to happen but did not
[do] a thing to prevent it....”. He does not believe
that Ms. Davis was directly involved in the conspiracy to
murder his family members, but asserts that she was aware of
it. Mr. Bostic concludes his complaint by stating that
“[i]t is very obvious that there was a conspiracy
against plaintiff. It is also very obvious that the F.B.I.,
the Columbus Police Department along with other law
enforcement agencies made a total mess and caused many, many
more problems then [sic] they solved. They also used private
citizens such as Davis....” Mr. Bostic seeks one
million dollars in damages.
Chief Jacobs and Officer Rice filed an answer to the second
amended complaint on March 10, 2017. (Doc. 22). Now under
consideration is Ms. Davis's motion to dismiss Mr.
Bostic's complaint based on the failure to include any
allegations sufficient to establish federal jurisdiction. Ms.
Davis correctly states that because there is no diversity of
citizenship between the parties, federal law must supply the
jurisdictional basis for his claims against her. See
28 U.S.C. §1331. She argues that Mr. Bostic's
pleading mainly relies on a claim of simple assault, which
does not constitute a federal question, and contains
“ramblings about being deprived of his ‘civil
rights...'” She asserts that Mr. Bostic's
claims “are nothing more than unsupported, summary
assertions” and that his claims against her should be
dismissed for lack of jurisdiction.
to Ms. Davis' motion to dismiss, Mr. Bostic filed a
“motion for court to continue with plaintiff's case
because plaintiff has met court requirements, ” which
the Court will construe as a response to the motion to
dismiss. Mr. Bostic argues that he is not alleging only a
simple assault, but that he was threatened to “drop his
complaint or else” during the incident on November 16,
2015, although this lawsuit was not filed until November 27,
2015. He revisits his allegation about the death of his son,
alleging for the first time that his son was beaten and cut
on his leg by “two thugs” and that somehow the
Columbus police were involved or had knowledge of this. Mr.
Bostic asserts that his “civil rights have been
violated” and that the Court should not dismiss his
case for lack of jurisdiction.
to dismiss under Rule 12(b)(1) “are categorized as
either a facial attack or a factual attack.” Bell
v. United States, 4 F.Supp.3d 908, 913 (S.D. Ohio 2014)
(quoting McCormick v. Miami Univ., 693 F.3d 654, 658
(6th Cir. 2012)). A facial attack on subject-matter
jurisdiction is a “challenge to the sufficiency of the
pleading itself, ” and therefore is resolved under the
familiar Rule 12(b)(6) standard. Id. In the instant
case, where jurisdiction is challenged under a Rule 12(b)(1)
motion, and discovery has not yet commenced, the Court
construes the motion as facially challenging subject-matter
jurisdiction. See Kal Kan.Foods, Inc. v. Iams Co.,
197 F.Supp.2d 1061, 1066-67 (S.D. Ohio 2002). A pro
se litigants pleadings are held to a less stringent
standard than pleadings prepared by attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Nonetheless, courts
are not to “abrogate basic pleading essentials in
pro se suits.” See Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989). Courts are not obligated
to entertain a pro se plaintiff's claim that
“defies comprehension” or allegations that
largely amount to “incoherent ramblings.”
Roper v. Ford Motor Co., 2010 WL 2670827, at *4
(S.D. Ohio Apr. 6, 2010), report and recommendation adopted,
2010 WL 2670697 (S.D. Ohio July 1, 2010) (internal citations
omitted). It is with these standards in mind that the instant
motion will be decided.
Court construes Mr. Bostic's complaint as alleging that
his constitutional rights were violated by Ms. Davis. 42
U.S.C. §1983 provides a private cause of action for
constitutional violations. To establish a prima
facie claim under §1983, a plaintiff must satisfy
two elements: (1) that defendants acted under color of state
law, and (2) that defendants deprived plaintiff of a federal
statutory or constitutional right. See,
e.g., Flagg Bros. v. Brooks, 436 U.S. 149,
155 (1978); Searcy v. City of Dayton, 38 F.3d 282,
286 (6th Cir. 1994); United of Omaha Life Ins. Co. v.