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Bonds v. Casino

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

December 18, 2019

TODD BONDS, Plaintiff,
v.
JACK CASINO, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge

         Plaintiff, a resident of Cincinnati, Ohio, brings this pro se civil action against Jack Casino and Kelli Doe, a food and beverage supervisor at Jack Casino. 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. § l9l5(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, 490 U.S. at 328-29; 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. lqbal, 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 lqbal 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." lqbal, 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 unadorned, the-defendant-unlawfully-harmed-me accusation." lqbal, 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).

         The pro se complaint states that plaintiff is publicly known as "Fame Rothstein," a sports handicapper who runs a podcast called the "Fame Rothstein Sports Investing Show." (Id.). Plaintiff alleges that on July 29, 2019, he was served undercooked pancakes at Jack Casino. He alleges that as a result, he suffered painful and persistent diarrhea and nausea. He alleges he was treated at the hospital, but Jack Casino refuses to pay for plaintiffs medical bill.

         The complaint also alleges that on November 12, 2019, plaintiff ordered hot tea while patronizing Jack Casino. Plaintiff sipped the tea and noticed a "booger" on the outside of the tea cup. He complained to Kelli Doe, who stated the substance on the cup was part of a lemon. She wiped the substance with a towel and threw it away, despite plaintiffs request that she preserve the substance for lab analysis. Plaintiff alleges that following the incident, he noticed a white security guard staring at him. The security guard later asked plaintiff to leave the casino because plaintiff was not drinking or gaming. Plaintiff alleges he advised the guard he was going to play as soon as he regained his strength "after the booger incident," but the guard nevertheless escorted plaintiff out of the casino and told him to come back in 24 hours.

         Plaintiff alleges that one week prior to this incident, he "was skipped over for service by a white female bartender with red-hair, while she chose to serve three white men first whom Plaintiff was in clearly before these men." (Doc. 1-1 at 8). Plaintiff, who is black, complained to Kelli Doe, who offered him a free lunch/dinner.

         Plaintiff returned to Jack Casino Thanksgiving morning. The same security guard stood near plaintiff and observed him. Plaintiff felt uncomfortable and left the casino. Plaintiff alleges this was harassment which has inhibited plaintiff from returning to Jack Casino and has caused damage to plaintiffs "sports investing business.” Plaintiff alleges he "cannot use face-to-face contact with his own patrons or to secure patrons and subscriptions to Plaintiffs podcast as he is so freely able to do in Indiana." (Doc. 1-1 at 6). Plaintiff states:

While sports wagering is not legal in Ohio as of this filing, it is widely known that the legislature has several bills proposed and Ohio is expected to become legal at some point in 2020. However, with the behavior of the casino and its employees, Plaintiff has lost money and continues to lose money as he cannot canvas in the downtown Cincinnati Casino, due to the harassment, intimidation, retaliation and other illegal treatment from the Casino and its employees.

(Doc. 1-1 at 6).

         The complaint alleges claims for attempted murder, violation of the Anti-Tampering Act, 18 U.S.C. § 1365, spoliation of evidence, discrimination in a public place of accommodation, retaliation, harassment, and intimidation. (Doc. 1-1, Complaint). As relief, plaintiff seeks monetary and injunctive relief.

         Plaintiffs allegations are insufficient to state a claim with an arguable basis in law over which this federal ...


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