United States District Court, S.D. Ohio, Western Division
OPINION AND ORDER
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.
the filing of Plaintiffs' pro se complaint on
August 28, 2017, none of the three Defendants have yet filed
an answer or response to the complaint. The record further
reflects that two of the Defendants have yet to be served.
Currently pending are three motions in which Plaintiffs seek
additional Court assistance to effectuate service of their
complaint. The Plaintiffs' most recent motion will be
granted in part.
Court has permitted Plaintiffs to file their pro se
complaint in forma pauperis, or without payment of a
filing fee. Plaintiffs, who live in Portsmouth, Ohio, are
relatively experienced pro se litigants, having
pursued a number of cases in this Court, most of which have
been filed both pro se and in forma
current complaint alleges that they are African-American
homeowners who have resided in their home since October 20,
1994. (Doc. 1-3 at 1). The three identified individual
Defendants are Caucasian neighbors. The complaint generally
relates to a series of escalating and ongoing conflicts with
the Defendants, primarily over a privacy fence and gate
between the two properties, which conflicts are alleged to
have occurred between August 7, 2016 and July 17, 2017.
Plaintiffs allege that the incidents, both individually and
in combination, constitute violations of the Fair Housing
Act, and of Plaintiffs' “federal civil
rights.” Plaintiffs seek punitive damages, injunctive
relief (including but not limited to a temporary restraining
order and temporary and permanent injunctions), and
attorney's fees and costs. Plaintiffs claim that this
Court has pendant jurisdiction over their “Ohio Civil
Rights claims” under the “Ohio Fair Housing
Act.” (Doc 1-2 at 2).
in this case were initially delayed while this Court
determined whether Plaintiffs, who are debtors in ongoing
bankruptcy proceedings, were the real parties in interest, or
whether the Trustee was the real party in interest. Upon
resolution of that threshold issue in Plaintiffs' favor,
the Court screened the complaint as required by 28 U.S.C.
screening the complaint on September 13, 2017, the
undersigned noted the existence of what appears to be a
closely related separate suit filed by the named Defendants
herein in Scioto County State Court. See Cooley v.
Harris, No. 17CIH00071 (Scioto County Court of Common
Pleas). In addition, the Bankruptcy Trustee advised the
undersigned of a third related adversary proceeding recently
filed by Plaintiffs in Bankruptcy Court, No. 1:17-ap-01041.
The Trustee pointed out the existence of an open question as
to which of the three courts “is the proper venue for
consideration of the Harris claims against the Cooleys, and
where the Cooleys' property questions should be
decided.” (Doc. 5 at 6). However, because the
undersigned's review was limited to screening the
complaint under § 1915(e), the Court declined to resolve
that question prior to service of the complaint. (Doc. 7).
undersigned ultimately concluded that despite it being
“very close as to whether Plaintiffs have stated any
cognizable federal claims, ” Plaintiffs' complaint
should be permitted to proceed, with service of the complaint
by the U.S. Marshal. Id.; but see Franco-Ward v.
Nations Credit Corp., 2000 WL 875894 (6th Cir., June 20,
2000) (affirming dismissal of retaliation and intimidation
claims under 42 U.S.C. §3617, because plaintiffs'
allegations of racial discrimination were conclusory and
unsupported by factual allegations to support claims). In
drawing that conclusion, the Court cited the “liberal
pleading standards applied to pro se pleadings, as
well as the extremely low threshold used in screening cases
under 28 U.S.C. § 1915(e).” (Doc. 7). At the same
time, the Court advised all parties that the “decision
to give the Plaintiffs the benefit of the doubt at this
preliminary screening stage should not be viewed as
foreclosing any affirmative defenses the Defendants may be
able to raise in a motion to dismiss.” (Id.)
Plaintiffs filed objections to the undersigned's
September 13, 2017 Order, which objections remain pending
before U.S. District Judge Michael R. Barrett. (Doc. 9).
summons was issued by the U.S. Marshal in accordance with
this Court's Order, Plaintiffs filed an amended
complaint. (Doc. 10). Less than two weeks later on October
10, 2017, Plaintiffs filed a “Notice of Erracta
[sic]” that purports to further amend one or more
citations in the amended complaint. (Doc. 11). The
undersigned declines to conduct additional screening under
§ 1915(e) of the first amended complaint (or Notice) at
this time for reasons of judicial economy, and because the
allegations in the first amended complaint appear to be
closely aligned to those in the original complaint.
October 6, 2017, summons was returned as executed on the
original complaint for Defendant Chrissy Lodwick Spraughe.
Plaintiffs note that Defendant Kayley Cooley signed for the
summons and complaint on behalf of that Defendant on
September 29, 2017. (See Doc.11; see also
Doc. 18 at 2). Although an answer was due on or before
October 20, 2017, no answer has been filed by that Defendant.
contrast to the status of Defendant Spraughe, the record
reflects that Defendants Daniel and Kaylay Cooley
“refused” to accept summons by certified mail.
(Docs. 14, 15; see also Doc. 17 at 4). On November
16, 2017 and again on November 20, 2017, Plaintiffs filed
motions seeking the status of service concerning those
Defendants. (Docs. 13, 16). On December 8, 2017, Plaintiffs
filed a third motion seeking another court order directing
the U.S. Marshal to personally serve the Defendants. (Doc.
17). Plaintiffs' latest motion indicates that they have
provided an amended summons, copies of the complaint, and
additional USM 285 forms for purposes of effecting service.
Rule 4.2(c), consistent with Ohio R. Civ. Pro. 4.6(C),
permits service by ordinary mail in cases in which service by
certified mail has been refused. Although the law also
permits service through personal delivery to the Defendants,
the expense of personal service is not warranted in this case
due to the adequacy of service under Rule 4.2(c). Unlike
service by certified mail (which the Cooley Defendants have
to date attempted to evade), proof of mailing by ordinary
mail creates a rebuttable presumption that the material was
received. Bloch v. Eastern Mach. Screw Corp., 281 F. 777
(6th Cir.1922); Griffin v. General Acc. Fire &
Life Assur. Co., 94 Ohio App. 403 (1953).