United States District Court, S.D. Ohio, Eastern Division
BRANDON J. ASHDOWN, Plaintiff,
TWELFTH DISTRICT COURT OF APPEALS, et al., Defendants.
A. Sargus Chief Judge
SUPPLEMENTAL REPORT & RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.
September 8, 2017, the undersigned issued a Report and
Recommendation (ECF No. 7) recommending that the Court
dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)
for failure to state a claim on which relief may be granted.
Plaintiff Ashdown has not objected to that Report and
Recommendation. Instead, he asks the Court for leave to amend
his Complaint to correct deficiencies identified in the
Report and Recommendation. (ECF No. 10). For the reasons that
follow, it is RECOMMENDED that the Court
DENY Plaintiff's Motion for leave to
File Amended Complaint and ADOPT the
September 8, 2017 Report and Recommendation.
Ashdown's claims relate to his untimely filing of a
petition for post-conviction relief in the Butler County
Court of Common Pleas. In his Proposed Amended Complaint,
Plaintiff alleges that he signed the petition and placed it
into the prison mail system on July 9, 2015. The deadline for
filing the petition was July 20, 2015. The Clerk of the Court
of Common Pleas time-stamped the petition on July 22, 2015.
Plaintiff also alleges these facts: (1) someone altered the
date on the internal prison document showing when Plaintiff
had placed the petition in the prison mail system and (2) the
petition was not placed in the United States mails until July
15, 2105. Plaintiff attributes the delay to “some
reason” and, on the basis of those allegations, asserts
that “either NCI, the Clerk of Courts, or the head post
master of the State Post Office knowingly and willingly
committed” fraud, tampering with records, and forgery.
(Pl.'s Proposed Am. Compl. PAGEID# 82, ECF No. 10.)
sustain a § 1983 claim, Plaintiff must establish that he
was deprived of a right secured by the Constitution or laws
of the United States and that this deprivation was caused by
a person acting under color of state law. Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 155 (1978); Ellison v.
Garbarino, 48 F.3d 192, 194 (6th Cir. 1995). Plaintiff
asserts his claim against Mary Swain, the Clerk of the Butler
County Court of Common Pleas; Lieutenant McKonkey, the prison
official charged with administration of the mail room; and
the postmaster of the Caldwell, Ohio, United States Post
September 8, 2017 Report and Recommendation, the undersigned
analyzed Plaintiff's allegations against Ms. Swain and
concluded that Plaintiff had not stated a claim against her
because he had not plausibly alleged that Ms. Swain acted
with malice or corruption to delay the delivery of his legal
mail. (Sept. 8, 2017 Report & Rec., ECF No. 7 at PAGEID#
70 (citing Smith v. Martin, 542 F.2d 688, 690-91
(6th Cir. 1976), cert. denied, 431 U.S. 905
(1977)).) Although Plaintiff Ashdown now proposes to add
allegations of malice and corruption, he has identified no
specific facts in support of those allegations. They are just
a recitation of the required element. See Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
Accordingly, Plaintiff's Proposed Amended Complaint would
not withstand a motion to dismiss by Ms. Swain for failure to
state a claim upon which relief may be granted.
September 8 Report and Recommendation, the undersigned also
analyzed Plaintiff's claim against Mr. McKonkey and
concluded that Plaintiff had failed to state a claim upon
which this Court could grant relief. The basis for that
conclusion was the Plaintiff's failure to allege that
McKonkey had engaged in any intentional action to impede
Plaintiff's access to the courts. (Sept. 8, 2017 Report
& Rec., ECF No. 7 at PAGEID# 72-73 (citing Sims v.
Landrum, 170 F. App'x 954, 956-57 (6th Cir. 2006)).)
Plaintiff's Proposed Amended Complaint does not add
allegations of intentional conduct on Mr. McKonkey's
part; therefore, the proposed amendment would be futile.
undersigned observed in the September 8, 2017 Report and
Recommendation, the United States Postal Service and its
employees are not state actors and do not act under color of
state law in the course of carrying out their everyday
responsibilities. (Id. at PAGEID# 72 (citing
Moore v. U.S. Postal Service, 159 F. App'x 265,
268 (2d Cir. 2005)).) Plaintiff Ashdown has not alleged any
action under color of state law by the Postmaster of the
Caldwell, Ohio, Post Office. He cannot, therefore, maintain a
claim under § 1983 against that official. His proposed
amended claim against the postmaster would be futile for the
Federal Rule of Civil Procedure 15(a)(2), the Court should
give leave for a party to amend his pleading “when
justice so requires.” Fed.R.Civ.P. 15(a)(2).
“Nevertheless, leave to amend ‘should be denied
if the amendment is brought in bad faith, for dilatory
purposes, results in undue delay or prejudice to the opposing
party, or would be futile.'” Carson v. U.S.
Office of Special Counsel, 633 F.3d 487, 495 (6th Cir.
2011) (quoting Crawford v. Roane, 53 F.3d 750, 753
(6th Cir. 1995)). A court may deny a motion for leave to
amend for futility if the amendment could not withstand a
motion to dismiss. Riverview Health Inst. LLC v.
Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir.
2010); Midkiff v. Adams Cnty. Reg'l Water Dist.,
409 F.3d 758, 767 (6th Cir. 2005).
Plaintiff's Proposed Amended Complaint would not
withstand a motion to dismiss for failure to state a claim,
the amendment would be futile. It is, therefore,
RECOMMENDED that the Court
DENY Plaintiff's Motion for Leave to
Amend the Complaint (ECF No. 10) and ADOPT
the September 8, 2017 Report and Recommendation (ECF No. 7).
party objects to this Report and Recommendation, that party
may, within fourteen (14) days of the date of this Report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s). A Judge of this Court shall make a de
novo determination of those portions of the Report or
specified proposed findings or recommendations to which
objection is made. Upon proper objections, a Judge of this
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge
with instructions. 28 U.S.C. § 636(b)(1).
parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the
right to have the District Judge review the Report and
Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation. See ...