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Mimms v. Ware

United States District Court, S.D. Ohio, Western Division

March 19, 2018

JAMES DONALD MIMMS, Plaintiff,
v.
LINCOLN WARE, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         Plaintiff, 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. § 1915(e)(2)(B).

         In 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).

         Congress 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)).

         "A 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         Plaintiffs 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.

         Plaintiff 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.

         Plaintiffs allegations are insufficient to state a claim with an arguable basis in law over which this federal Court has subject matter jurisdiction.

         First, 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.

         Second, 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.

         In 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).

         Finally, 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).

         IT IS THEREFORE ...


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