United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
an inmate at the Federal Correctional Institute in Ashland,
Kentucky (FCI Ashland), has filed a twenty-four count
complaint against defendants Commissioner Charles Furmon;
Butler County Board of Commissioners; Fifth Third Bank; John
Boehner; Senator William Coley; Kevin Gormley; Janel McBain;
John Paul Reiser; Vince Rinaldi; Ralph Martinez; and Thomas
Barnhart, III. (Doc. 1). In his complaint, plaintiff alleges
constitutional violations under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), and 42 U.S.C. §§ 1981, 1983, 1985, and
1986. (Id.). Plaintiff also alleges ancillary
state-law tort claims and a claim for declaratory relief
under 28 U.S.C. § 2201. (Id.). Plaintiff has
paid the filing fee.
matter is before the Court for a sua sponte review
of the 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. See Prison Litigation
Reform Act of 1995 § 804, 28 U.S.C. §
1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
Although plaintiff has paid the filing fee, the Court is
required by statute to screen the complaint to determine if
it is frivolous, malicious, fails to state a claim upon which
relief may be granted, or states a claim against a person who
is immune from suit. See McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997) ("A district court is
required to screen all civil cases brought by prisoners,
regardless of whether the inmate paid the full filing fee, is
a pauper, is pro se, or is represented by counsel as the
statute does not differentiate between various civil actions
brought by prisoners"), overruled on other grounds
by Jones v. Bock, 549 U.S. 199, 206 (2007); see also
LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
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 v. Hernandez,
504 U.S. 25, 32 (1992); 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 reliefmay be
granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and
1915A(b)(1). 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
§§ 1915A(b)(1) and 1915(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. Allain, 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).
2009, following a seventeen-day trial, plaintiff was
convicted of eleven fraud and fraud-related counts and
sentenced to fifteen years in prison. See United States
v. Carter, No. 1:08-cr-51 (S.D. Ohio June 9,
2010). (See also Doc. 1, at PagelD 3).
As is relevant here, the government asserted that plaintiff
defrauded Fifth Third Bank in part by knowingly concealing a
guaranty that plaintiff and others had given to return a $4
million loan to National City Bank. See Carter, No.
1:08-cr-51 (Doc. 172, at PagelD 4198-99). (See also
Carter, No. 18-400 (Doc. 1, at PagelD 40)).
instant lawsuit, plaintiff alleges that the United States
Attorney for the Southern District of Ohio conceded in a
February 8, 2018 response to a request for admission that
"the U.S. Department of Justice ... and the FBI received
fake and bogus PNC Bank fka National City Bank ... documents
from PNC executives purporting to show the existence of a $4,
000, 000 debt ... purportedly owed by [plaintiff] and/or
Dynus [Corporation]." (Doc. 1, at PagelD
2).Plaintiff further alleges that in his
criminal case "Assistant United States Attorneys . ..
referenced and emphasized the non-existent $4, 000, 000 debt
over 72 times." (Id. at PagelD 19-20). He
claims that "[t]o win their conviction against
[plaintiff] for bank fraud, federal prosecutors relied on the
fake $4, 000, 000 debt created and fraudulently concealed by
Defendants." (Id. at PagelD 20). According to
plaintiff, "[b]ut for the creation of the fake and bogus
bank documents," he "would not be wrongfully
incarcerated, 60 people would not have lost their jobs, and
Dynus, a minority-owned, multi-million dollar business would
still be running." (Id. at PagelD 11).
relief, plaintiff seeks monetary, injunctive, and declaratory
Analysis of Plaintiffs Complaint
Plaintiffs Claims under Bivens (Claims One, Two, and Three),
§ 1981 (Claim Seventeen), § 1983 (Claims Four and
Twenty), § 1985 (Claim Eight), and § 1986 (Claim
Nine) Are Barred by the Statute of Limitations.
§§ 1981, 1983 and 1985 claims are governed by the
two-year statute of limitations found in Ohio Rev. Code
§ 2305.10. See Tolbert v. Ohio Dep 't of
Transp., 172 F.3d 934, 937, 939 (6th Cir. 1999) (stating
that two-year statute of limitations applies to claims under
§§ 1981 and 1983); see also Mickey v.
McFaul, No. 1:10-cv-l350, 2010 WL 3221921, at *2 (N.D.
Ohio Aug. 13, 2010) (stating that two-year statute of
limitations applies to claims under § 1985). The same
two-year statute of limitations governs plaintiff s
Bivens claim. See McSurely v. Hutchison, 823
F.2d 1002, 1005 (6th Cir. 1987) (stating that Bivens
actions are governed by the same personal injury statute of
limitations that applies to § 1983). Section 1986
contains a one-year limitation period. 42 U.S.C. § 1986.
the statute of limitations is normally an affirmative defense
raised by defendants in an answer, "if a statute of
limitations defense clearly appears on the face of a
pleading, the district court can raise the issue sua
sponte." Watson v. Wayne Cty., 90 Fed.Appx.
814, 815 (6th Cir. 2004) (citing Pino v. Ryan, 49
F.3d 51, 53-54 (2d Cir. 1995)); see also Alston v. Tenn.
Dep't of Corr., 28 Fed.Appx. 475, 476 (6th Cir.
2002) ("Because the statute of limitations defect was
obvious from the face of the complaint, sua sponte dismissal
of the complaint was appropriate."). Moreover,
"[w]here a particular claim is barred by the applicable
statute of limitations, it does not present an arguable or
rational basis in law or fact and therefore may be dismissed
as frivolous under § 1915(e)(2)." Fraley v.
Ohio Gallia Cty., No. 97-3564, 1998 WL 789385, at *1
(6th Cir. Oct. 30, 1998).
conduct underlying plaintiffs Bivens claims (Claims
One, Two, and Three) as well as his claims under §§
1981 (Claim Seventeen), 1983 (Claims Four and Twenty), 1985
(Claim Eight) and 1986 (Claim Nine) occurred prior to or
during his 2009 trial. Indeed, these claims are based upon
plaintiffs assertion that in convicting him for bank fraud
the government relied on a $4 million debt that did not
exist. (See Doc. 1, at PagelD 48-50 (plaintiffs
Bivens claims); 50-51, 61 (plaintiffs claims under
§ 1983); 53-54 (plaintiffs § 1985 claim); and 54-55
(plaintiffs § 1986 claim)). Plaintiff also appears to
allege in Claim Two that defendants Gormley, McBain, and
Reiser disclosed sensitive and private information regarding
his financial matters without his consent. (See Doc.
1, at PagelD 49).
claims that he could not have raised his claims based on the
alleged nonexistence of the $4 million debt before he
received the United States Attorney's February 8, 2018
response to his request for admission. (See Doc. 1
at PagelD 42). Plaintiffs complaint, however, contains as an
exhibit a December 17, 2015 letter from the Warden at the
Federal Correctional Institution in Elkton, Ohio, stating
that plaintiff was claiming at that time that information in
his Presentence Investigation Report was inaccurate because
"PNC Bank certified records do not show an ...