United States District Court, S.D. Ohio, Eastern Division
L. Graham, United States District Judge.
an Ohio state inmate, brings the instant civil action against
JPay, Inc. (“JPay”), which provided the JP5
seven-inch tablet purchased by plaintiff on or about
November, 2015. Plaintiff alleges that the tablet is
defective, and that he has had many problems with this
device, which he claims no longer works. Plaintiff has also
named the Ohio Department of Rehabilitation and Correction
(“ODRC”) as a defendant, claiming that ODRC
should be responsible for insuring that no inmate is taken
advantage of by a company which provides products and
services to inmates. Plaintiff seeks $500, 000 in damages and
a court order directing JPay to provide an extended warranty
and insurance for their devices.
August 10, 2017, the magistrate judge filed an initial screen
report and recommendation pursuant to 28 U.S.C. §1915A,
which requires the court, “in a civil action in which a
prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity, ” to dismiss a
complaint that fails to state a claim upon which relief may
be granted. 28 U.S.C. §1915A(a)-(b)(1). The magistrate
judge noted that plaintiff's defective product claims
against the defendants are not based on a violation of
federal statutes or a deprivation of constitutional rights,
and do not provide a basis for federal question jurisdiction
under 28 U.S.C. §1331. Doc. 5, p. 5. The magistrate
judge also found that the allegations in the complaint are
insufficient to support diversity jurisdiction under 28
U.S.C. §1132 because defendant ODRC is a citizen of
Ohio, as is plaintiff, so complete diversity is not present,
and because the allegations in the complaint fail to show
that the amount in controversy would exceed $75, 000. Doc. 5,
p. 5 (citing Caterpillar, Inc. v. Lewis, 519 U.S.
61, 68 (1996)). The magistrate judge concluded that due to
the lack of allegations in the complaint sufficient to
support subject matter jurisdiction, the complaint fails to
state a claim for which relief could be granted, and
recommended that this action be dismissed. See Doc.
5, p. 6.
matter is before the court for consideration of
plaintiff's objections (Doc. 7) to the magistrate
judge's report and recommendation. If a party objects
within the allotted time to a report and recommendation, the
court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§636(b)(1); see also Fed.R.Civ.P. 72(b). Upon
review, the Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. §636(b)(1).
magistrate judge correctly explained, 28 U.S.C. §1915(e)
requires sua sponte dismissal of an action upon the
court's determination that the action is frivolous or
malicious, or upon determination that the action fails to
state a claim upon which relief may be granted. Grinter
v. Knight, 532 F.3d 567, 572 (6th Cir. 2008). Courts
conducting initial screens under §1915(e) apply the
motion to dismiss standard. See, e.g.,
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)
(applying Fed.R.Civ.P. 12(b)(6) standards to review under 28
U.S.C. §§1915A and 1915(e)(2)(B)(ii)).
ruling on a motion to dismiss under Rule 12(b)(6) construe
the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as
true, and determining whether plaintiff undoubtedly can prove
no set of facts in support of those allegations that would
entitle him to relief. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Bishop v. Lucent Techs., Inc., 520
F.3d 516, 519 (6th Cir. 2008). To survive a motion to
dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal
theory.” Mezibov v. Allen, 411 F.3d 712, 716
(6th Cir. 2005). The court may dismiss an action as frivolous
and for lack of subject matter jurisdiction under 28 U.S.C.
§1915(e)(2)(B) and Fed.R.Civ.P. 12(h)(3) where there is
no basis for federal jurisdiction apparent on the face of the
complaint. Carlock v. Williams, 182 F.3d 916, 1999
WL 454880, *2 (6th Cir. 1999).
objection, plaintiff offers no argument as to why the
conclusions of the magistrate judge are erroneous. He does
not identify any federal claim he seeks to pursue in this
action, which he acknowledges he has brought only on his own
behalf. He lists the amounts he spent purchasing the device
and downloads for the device, including games, music and
books. These amounts total less that $1, 000. Aside from the
problem of incomplete diversity of citizenship, the
allegations in the complaint fail to establish that plaintiff
can recover more than the jurisdictional threshold of $75,
000 necessary for diversity jurisdiction.
accordance with the foregoing, the report and recommendation
(Doc. 5) is adopted. Plaintiff's objection (Doc. 7) is
overruled. This action is hereby dismissed pursuant to 28
U.S.C. §1915(e)(2)(B)(ii) and Rule 12(h)(3) for failure
to state a claim for which relief may be granted due to lack