United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
a resident of Cincinnati, Ohio, brings this pro se civil
action against Lincoln Ware, J. Stevens, Dave Stinger, and
Mitch Galvin. By separate Order, plaintiff has been granted
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This matter is before the Court for a sua
sponte review of plaintiff s complaint to determine whether
the complaint, or any portion of it, should be dismissed
because it is frivolous, 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. 28 U.S.C.
enacting the original in forma pauperis statute,
Congress recognized that a "litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.''
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C.
§§ 1915(e)(2)(B)(i). A complaint may be dismissed
as frivolous when the plaintiff cannot make any claim with a
rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also
Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990).
An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a
legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or rise to
the level of the irrational or "wholly incredible."
Denton, 504 U.S. at 32; Lawler, 898 F.2d at
1199. The Court need not accept as true factual allegations
that are "fantastic or delusional" in reviewing a
complaint for frivolousness. Hill v. Lappin, 630
F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490
U.S. at 328).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). A
complaint filed by a pro se plaintiff must be
"liberally construed" and "held to less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). By the same token, however, the
complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also
Hill, 630 F.3d at 470-71 ("dismissal standard
articulated in Iqbal and Twombly governs
dismissals for failure to state a claim" under
§§ l9l5A(b)(1) and l9l5(e)(2)(B)(ii)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded factual allegations as true, but need not
"accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555 (quoting
Papasan v. Attain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain "detailed factual
allegations, " it must provide "more than an
accusation." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
"labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. at 557. The complaint must
"give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests."
Erickson, 551 U.S. at 93 (citations omitted).
pro se complaint alleges that on some unspecified date, he
telephoned a radio talk show on two occasions to express his
views on particular topics. Plaintiff alleges that the second
time he called the radio station, defendant Stinger told
plaintiff he could not express his opinions for a second time
in one day. Plaintiff alleges he exchanged words with
defendant Stinger, who then banned plaintiff from ever
participating in future a radio show.
also alleges that in 2014, he was arrested by the Lockland
Police Department for non-payment of riding public transit.
Plaintiff alleges that in the process of the arrest, the
police officers used a racial slur and slammed him to the
ground. He alleges he spent ten days in the Hamilton County
Justice Center. Plaintiff states that after this incident,
defendant Lincoln Ware mocked plaintiff on Ware's daily
radio show "for a long time afterwards." (Doc. 1-1
at 6). Plaintiff does not specify the type of relief he is
seeking from the Court.
allegations are insufficient to state a claim with an
arguable basis in law over which this federal Court has
subject matter jurisdiction.
to the extent plaintiff may be invoking the diversity
jurisdiction of the Court under 28 U.S.C. § 1332(a), the
complaint reveals such jurisdiction is lacking. In order for
diversity jurisdiction pursuant to § 1332(a) to lie, the
citizenship of the plaintiff must be "diverse from the
citizenship of each defendant" thereby ensuring
"complete diversity." Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996) (citing State Farm
Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531
(1967)); see also Napletana v. Hillsdale College,
385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North
American Res. Corp., 809 F.Supp. 546, 551 (S.D. Ohio
1992). In this case, it is alleged that plaintiff and
defendant Ware are Cincinnati residents. Plaintiff does not
state the addresses of the remaining defendants, so the
citizenship of these defendants is unknown. Even if the
remaining defendants are not citizens of Ohio, there is no
complete diversity of citizenship because plaintiff and
defendant Ware are Ohio citizens. In addition, plaintiffs
complaint does not allege the requisite amount in controversy
to satisfy diversity jurisdiction. 28 U.S.C. § 1332(1).
Therefore, this Court lacks subject matter jurisdiction on
the basis of diversity of citizenship over any state law
claims plaintiff may be alleging.
the Court is without federal question jurisdiction over the
complaint against defendants Ware and Stinger. District
courts also have original federal question jurisdiction over
cases "arising under the Constitution, laws, or treaties
of the United States." 28 U.S.C. § 1331. In order
to invoke the Court's federal question jurisdiction
pursuant to 28 U.S.C. § 1331, plaintiff must allege
facts showing the cause of action involves an issue of
federal law. See Metro. Life Ins. Co. v. Taylor, 481
U.S. 58, 63 (1987). The undersigned is unable to discern from
the facts alleged in the complaint any federal statutory or
constitutional provision that applies to give rise to an
actionable claim for relief against these defendants.
addition, plaintiff has failed to allege any facts showing
how defendants Stevens and Galvin somehow violated his
rights. With the exception of listing these named defendants
in the caption of his complaint, plaintiff has failed to
allege the specific actions Stevens and Galvin allegedly took
to violate his rights. Plaintiffs complaint provides no
factual content or context from which the Court may
reasonably infer that defendants Stevens and Galvin violated
plaintiffs rights. Iqbal, 556 U.S. at 678.
Accordingly, the complaint fails to state a claim upon which
relief may be granted against these defendants and should be
dismissed under 28 U.S.C. § 1915(e)(2)(B).
to the extent plaintiff alleges an excessive use of force by
the Lockland Police Department and its officers in 2014, they
are not named as defendants in the complaint. In addition,
any such claims would be barred by the two year statute of
limitations governing civil rights claims under 42 U.S.C.
§ 1983. See Browning v. Pendleton, 869 F.2d
989, 992 (6th Cir. 1989) (holding that the "appropriate
statute of limitations for 42 U.S.C. § 1983 civil rights
actions arising in Ohio is contained in Ohio Rev. Code §
2305.10, which requires that actions for bodily injury be
filed within two years after their accrual"). Although
the statute of limitations is an affirmative defense, when it
appears clear on initial screening of the complaint that the
action is time-barred, the complaint may be dismissed for
failure to state a claim upon which relief may be granted.
See Jones v. Bock, 549 U.S. 199, 215 (2007).
IS THEREFORE ...