United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
R. ADAMS JUDGE
se Plaintiff Terry Foster filed this action on behalf of
himself, Talaysia Foster and L.F. (minor child) under 42
U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000e. In
the Complaint, Plaintiff alleges CSEA engages in selective
enforcement of child support orders. He asserts federal law
claims for gender discrimination and denial of due process,
and state law claims for negligence and breach of contract.
He seeks monetary damages.
filed an Application to Proceed In Forma Pauperis
(Doc. No. 2). That Application is granted.
alleges he is a party to four child support orders in
Cuyahoga County Case Nos. SU0570093600, AD06091817,
AD06090181 and SU12711278. He claims CSEA enforced Case No.
SU0570093600 until it was paid in full. He does not explain
if it was “paid in full” because the child
reached the age of majority or because he satisfied an
arrearage. He contends CSEA enforced Case No. SU12711278
until it was determined that Plaintiff was not the
child's biological father, at which time he received a
refund of some of the money he paid. He indicates that CSEA
has not been as diligent about enforcing the child support
orders in Case Nos. AD06091817 and AD06090181. He states he
had the obligor arrested on two separate occasions in two
years. In 2012, she spent seven days in jail. She spent
twenty-two days in jail in 2014. Plaintiff contends she was
released both times without being required to purge the
contempt of court by paying a portion of the child support
owed. He alleges that in July 2019, the Cuyahoga County
Prosecutor finally brought felony criminal non-support
charges against her. Plaintiff claims CSEA engaged in
selective enforcement denying him equal protection and due
process. He also asserts state law claims for negligence and
breach of contract.
Standard of Review
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), the
Court is required to dismiss an in forma pauperis
action under 28 U.S.C. § 1915(e) if it fails to state a
claim upon which relief can be granted, or if it lacks an
arguable basis in law or fact. Neitzke v. Williams,
490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d
1196 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim
lacks an arguable basis in law or fact when it is premised on
an indisputably meritless legal theory or when the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327. A cause of action fails to state a claim upon which
relief may be granted when it lacks “plausibility in
the complaint.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 564 (2007).
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009). The factual allegations in the pleading must
be sufficient to raise the right to relief above the
speculative level on the assumption that all the allegations
in the complaint are true. Twombly, 550 U.S. at 555.
The Plaintiff is not required to include detailed factual
allegations, but must provide more than “an unadorned,
the defendant unlawfully harmed me accusation.”
Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause
of action will not meet this pleading standard. Id.
In reviewing a Complaint, the Court must construe the
pleading in the light most favorable to the Plaintiff.
Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559,
561 (6th Cir. 1998).
initial matter, Terry Foster cannot bring this action on
behalf of Talaysia Foster or L.F., a minor child. In general,
a party may plead and conduct his or her case in person or
through a licensed attorney. See 28 U.S.C. §
1654; Eagle Associates v. Bank of Montreal, 926 F.2d
1305, 1308 (2d Cir. 1991). An adult litigant who wishes to proceed
pro se must personally sign the Complaint to invoke
this Court's jurisdiction. See 28 U.S.C. §
1654; Steelman v. Thomas, No. 87-6260, 1988 WL 54071
(6th Cir. May 26, 1988). A minor child must appear through
counsel and cannot be represented by a non-attorney, even if
the non-attorney is the child's parent. Meeker v.
Kercher, 782 F.2d 153, 154 (10th Cir. 1986); Lawson
v. Edwardsburg Public School, 751 F.Supp. 1257 (W.D.
Mich. 1990). Terry Foster is not a licensed attorney. He
cannot represent either Talaysia Foster or L.F. in court or
file pleadings on their behalf. As only Terry Foster's
signature appears on the Complaint, the Court will consider
only his claims.
addition, Plaintiff indicates he is bringing a claim under
Title VII, 42 U.S.C. § 2000e. Title VII provides a cause
of action for employment discrimination. This case does not
concern Plaintiff's employment.
as the Cuyahoga County Child Support Enforcement Agency is a
department or agency of Cuyahoga County, it is not
suijuris, meaning it cannot be sued in its own
right. See Pulse v. Gale, No. 3:16 CV 91, 2016 WL
1704312, at *2-3 (N.D. Ohio Apr. 27, 2016) (Erie County Adult
Probation Department is not sui juris and cannot be
sued in its own right) (collecting cases); Wilson v.
Trumbull Cty. Dep't of Job & Family Servs., No.
4:12 CV 02163, 2013 WL 5820276, at *3 (N.D. Ohio Oct. 29,
2013) (finding that “numerous district courts”
have found that county agencies are not sui juris,
and granting motion to dismiss of defendant Trumbull County
Adult Protective Services because the county agency lacks the
capacity to be sued) (collecting cases); Marin v.
Cleveland Clinic, No. 1:09CV2090, 2010 WL 359699, at *4
(N.D. Ohio Jan. 29, 2010) (Cuyahoga County Department of
Senior and Adult Services and the Cuyahoga County Department
of Job and Family Services are not sui juris and
lack the capacity to be sued in their own right) (collecting
cases); Lowe v. Hamilton Cty. Dep't of Job &
Family Servs., No. 1:05CV117, 2008 WL 816669, at *2
(S.D. Ohio Mar. 26, 2008) (finding Hamilton County Job and
Family Services is not sui juris and granting defendant's
Rule 12 motion). Because the Defendant lacks the capacity to
be sued, Plaintiff's claims against that entity fail as a
matter of law.
extent the Court can liberally construe the claims against
the Defendant as asserted against Cuyahoga County, Plaintiff
still fails to state a claim. Counties and other bodies of
local government may be sued pursuant to 42 U.S.C. §
1983 if they are “alleged to have caused a
constitutional tort through ‘a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body's officers.' ”
City of St. Louis v. Praprotnik, 485 U.S. 112, 121
(1988) (quoting Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 690 (1978)). The United
States Court of Appeals for the Sixth Circuit has held that a
Plaintiff may show the existence of a policy or custom
leading to the alleged violation by identifying the
following: “ ‘(1) the municipality's
legislative enactments or official policies; (2) actions
taken by officials with final decision-making authority; (3)
a policy of inadequate training or supervision; or (4) a
custom of tolerance or acquiescence of federal
violations.' ” Winkler v. Madison Cty.,
893 F.3d 877, 901 (6th Cir. 2018) (quoting Baynes v.
Cleland, 799 F.3d 600, 621 (6th Cir. 2015)). Here,
Plaintiff does not identify any policy or custom of the
Cuyahoga County Child Support Enforcement Agency that caused
a violation of his constitutional rights. He fails to state a
claim against Cuyahoga County.
Plaintiff had identified a policy or custom of the County, as
opposed to decisions of individual employees or judicial
officers, he still fails to state a claim under the
Fourteenth Amendment. The Equal Protection Clause prohibits
discrimination by government actors which either burdens a
fundamental right, targets a suspect class, or intentionally
treats one differently than others similarly situated without
any rational basis for the difference. Rondigo, L.L.C. v.
Township of Richmond, 641 F.3d 673, 681 -682 (6th Cir.
2011); Radvansky v. City of Olmsted Falls, 395 F.3d
291, 312 (6th Cir.2005). The threshold element of an equal
protection claim is disparate treatment. Scarbrough v.