affirming dismissal of claims asserted under the Ohio Constitution against Giant Eagle and Giant Eagle employees on the basis the defendants are not “state or governmental actors or entities”
How later courts described this case
- affirming dismissal of claims asserted under the Ohio Constitution against Giant Eagle and Giant Eagle employees on the basis the defendants are not “state or governmental actors or entities”
Written by the judges who cited it.
The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL G. BIRO, )
) CASE NO. 4:22cv672
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
HR BUSINESS, )
) MEMORANDUM OF OPINION
Defendant. ) AND ORDER
Pro se Plaintiff Michael G. Biro filed this action against Defendant HR Business in the
District Court for Southern District of Ohio. ECF No. 1. The action was subsequently
transferred to this Court. See ECF No. 7.
I.
Although it appears, from an attachment Plaintiff submitted with the Complaint, that this
case pertains to Plaintiffs termination from Giant Eagle due to his failure to complete an
attestation regarding his vaccination status as Giant Eagle requested (see ECF No. 1-1 at PageID
#: 7), Plaintiff's two-paragraph Complaint, as well as various additional filed documents, consist
largely of incomprehensible statements. See also ECF Nos. 3, 4,5, 8. Plaintiff's filings do not
set forth understandable factual allegations or legal claims against Defendant. The only clearly
discernible legal ground Plaintiff cites in the Complaint is “Article 1, Section 9 United States
Constitution.” ECF No. 1 at PageID #: 2. Plaintiff's request for relief is also incomprehensible.
See id, at PageID #: 4.
(4:22CV672)
Additionally, Plaintiff has not paid the filing fee or sought permission to proceed in forma
pauperis, despite having been expressly ordered to do so by the District Court for the Southern
District of Ohio before the action was transferred. See ECF No. 2. Nonetheless, it would be
futile to require Plaintiff to remedy this deficiency because the Court finds, upon its own review,
that Plaintiff's Complaint must be dismissed.
Pro se pleadings are generally entitled to liberal construction and held to less stringent
standards than pleadings drafted by lawyers, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). But the lenient treatment accorded pro se
plaintiffs has limits. See e.g., Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996). Pro se
litigants must still meet basic pleading requirements, and courts are not required to conjure
allegations on their behalf. See Erwin v. Edwards, 22 Fed. App’x 579, 580 (6" Cir. 2001).
Furthermore, federal courts are courts of limited jurisdiction and have a duty to police the
boundaries of their jurisdiction. Accordingly, a district court may, at any time, sua sponte
dismiss any complaint “for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure when the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999),
The Court finds that Plaintiffs Complaint warrants dismissal pursuant to Glenn. The
statements and assertions set forth in Plaintiff's pleadings are incomprehensible, and to the
limited extent to which they can be understood, appear unsubstantial, and frivolous. In sum, the
(4:22CV672)
Complaint does not provide a basis to establish the Court's subject-matter jurisdiction over any
non-frivolous federal claim against Defendant. See Lillard vy. Shelby County Bd. of Educ., 76
F.3d 716, 726 (6th Cir. 1996) (a court is not required to accept summary allegations or
unwarranted conclusions in determining whether a complaint states a claim for relief).
IL.
To the extent Plaintiff is attempting to assert a claim against Defendant for a violation of
the federal Constitution, the Complaint is implausible and without merit. Only defendants who
engage in state action may be liable for constitutional rights violations under the federal and Ohio
Constitutions. See, e.g., Lindsey y. Detroit Entertainment, LLC, 484 F.3d 824, 827 (6" Cir.
2007) (ruling that to prevail on a federal constitutional claim under 42 U.S.C. § 1983, “Plaintiffs
must demonstrate that Defendant deprived them of their rights, privileges, or immunities secured
by the Constitution under color of state law’’) (internal citation omitted); Jordan v. Giant Eagle
Supermarket, 2020 -Ohio- 5622, 1.57, 2020 WL 7258579, at *11 (Ohio App. 8 Dist., 2020)
(affirming dismissal of claims asserted under the Ohio Constitution against Giant Eagle and
Giant Eagle employees on the basis the defendants are not “state or governmental actors or
entities”). Plaintiffs Complaint fails to allege facts suggesting Defendant engaged in state
action. Further, the Complaint suggests no plausible basis for a claim under Article 1, Section 9
of the Constitution, which pertains to powers denied to Congress.
Based on the above, the case is dismissed. The Court further certifies pursuant to 28
(4:22CV672)
U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.
August 31, 2022 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge
4