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Franklin County Municipal Columbus Ohio v. Parrish

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

April 27, 2018

FRANKLIN COUNTY MUNICIPAL COLUMBUS OHIO, et al., Plaintiffs,
v.
DONALD L. PARRISH, Defendant.

          George C. Smith Judge

          ORDER AND REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         On February 2, 2018, Defendant, Donald Parrish, was charged in the Franklin County Municipal Court with driving without an operator's license and changing lanes without safety, violations of the Columbus, Ohio Traffic Code. See City of Columbus v. Donald L. Parrish, Franklin M.C. No. 2018 TR D 108463 (Feb. 2, 2018). Defendant removed the action to this Court on April 19, 2018. This matter is now before the Court for consideration of Defendant's Motion for Leave to Proceed In Forma Pauperis, which is GRANTED. (ECF No. 1.) Accordingly, it is ORDERED that judicial officers who render services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).

         This matter is also before the Court for the initial screen of Defendant's Notice of Removal (ECF No. 1-1) under 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow, the undersigned RECOMMENDS that the Court REMAND this action to the Franklin County Municipal Court.

         I.

         Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

         In doing so, however, “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.'” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)[1], which provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--
* * *
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 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.

         When the Notice of Removal provides no basis for federal jurisdiction, the Court may dismiss an action as frivolous and for lack of subject matter jurisdiction under both 28 U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 12(h)(3). See Williams v. Cincy Urban Apts., No. 1:10-cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182 F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)). In Defendant's Notice of Removal, he asserts that this Court has jurisdiction over this action under the Treaty of Peace and Friendship of 1836 A.D., as he is an “Aboriginal Indigenous Moorish-American.” (ECF No. 1-1, at 3.) The Treaty of Peace and Friendship on which Defendant relies governs disputes between Moroccan citizens and United State Citizens. See Bey v. Ohio, No. 1:11 CV 1306, 2011 WL 4944396, at *3 (N.D. Ohio Oct. 17, 2011). Although Defendant alleges he is of Moroccan descent, he also alleges that he was born in the United States. Defendant does not allege he is a Moroccan citizen. Therefore, this Court does not have subject-matter jurisdiction under the Treaty. ...


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