The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROGER CHARLES DAY, JR.,
Plaintiff,
Case No. 2:20-cv-2978
Judge Edmund A. Sargus
v.
Magistrate Judge Kimberly A. Jolson
RICHARD A. MILLER, et al.,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
Plaintiff Roger Charles Day, Jr. is an inmate at Terre Haute Federal Correctional Institution
who is proceeding pro se against Defendants. (Doc. 1-1). This matter is before the undersigned
for consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 1) and the
initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).
Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who
render services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).
Furthermore, having performed an initial screen and for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s claims.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Upon consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis under 28
U.S.C. § 1915(a)(1) and (2) (Doc. 1), Plaintiff’s Motion is GRANTED. Plaintiff is required to
pay the full amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s Motion
reveals that he has an insufficient amount to pay the full filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at the
Terre Haute Correctional Institution is DIRECTED to submit to the Clerk of the United States
District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of
either the average monthly deposits to the inmate trust account or the average monthly balance in
the inmate trust account, for the six-months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate’s
preceding monthly income credited to the account, but only when the amount in the account
exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. §
1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be made
payable to Clerk, United States District Court and should be sent to:
Prisoner Accounts Receivable
258 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
Consequently, it is ORDERED that Plaintiff be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who render services in this action shall do so
as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order
to Plaintiff and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of
this Order to the Court’s financial office in Columbus.
II. LEGAL STANDARD
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,
or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). In reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all
well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
However, a court is not required to accept factual allegations set forth in a complaint as true when
such factual allegations are “clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F.
App’x 427, 429–30 (6th Cir. 2009). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). In sum, although pro se complaints are to be construed liberally, Haines v. Kerner,
404 U.S. 519, 520 (1972), “basic pleading essentials” are still required. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989).
III. DISCUSSION
Plaintiff is a pro se inmate at Terre Haute Federal Correctional Institution.
In late 2004 and early 2005, Day began running a business scheme
involving his then-girlfriend, Susan Crotty Neufeld, and his friends, Nathan Carroll
and Greg Stewart. Acting at Day’s direction, Neufeld, Carroll, and Stewart would
set up companies that could bid on parts-supply contracts for the Defense Logistics
Agency (“DLA”), the agency within the DOD responsible for acquiring parts for
the military services. Using Day’s custom-designed software program, the
companies would then bid en masse on low-dollar value DLA contracts. When one
of the newly formed companies won a contract, Day would purchase the necessary
parts and have them shipped to Neufeld or Carroll, who would in turn deliver the
parts to a packaging company for shipping to the DLA to complete the contract.
Day would then share a portion of the profit with the others.
The arrangement between Day and his co-conspirators lasted three years,
during which the various companies secured some 987 contracts worth
approximately $8,670,380.78. Like all too many get-rich-quick ideas, however, this
scheme was too good to be true. The trick was in the parts: rather than delivering
parts that complied with the exacting military specifications called for in the various
contracts, Day would purchase similar sounding—yet cheaper and
nonconforming—items.
United States v. Day, 700 F.3d 713, 717 (4th Cir. 2012).
“Early on in the scheme, in May 2005, Day moved to Mexico, where he directed Neufeld,
Carroll, and Stewart through emails, phone calls, and internet chats.” Id. The scheme unraveled
as Plaintiff’s co-conspirators were arrested in 2006 and 2007. Id. at 718. After a year on the run
in Mexico, Plaintiff was arrested there in 2008 and imprisoned while awaiting extradition to the
United States. Id. He was subsequently indicted in the Eastern Division of Virginia for wire fraud
conspiracy, 18 U.S.C. § 1349; wire fraud, 18 U.S.C. § 1343; aggravated identity theft, 18 U.S.C.
§ 1028A; money laundering conspiracy, 18 U.S.C. § 1956(h); smuggling conspiracy, 18 U.S.C.
§§ 371, 554; and obstruction of justice, 18 U.S.C. § 1503. Id. After extradition, he was convicted
following a jury trial and sentenced to 1,260 months imprisonment. Id. at 719.
Now, Plaintiff purports to bring a civil RICO class action on behalf of a class of persons
who contracted with the United States Department of Defense (“DOD”), including the Defense
Logistics Agency and various Defense Supply Centers, using the “DD1155 form that contained
the express waiver of the contractor’s signature for acceptance of ‘the contract’ terms and
conditions and the waiver of the contractor’s return of a signed DD1155 contract to the contract
administrator, from 2004 to the present.” (Doc. 1-1, ¶ 3(a)). Defendants are a number of
“contracting/ordering officers” and contract administrators who allegedly worked for the DOD
during that time period. (Id., ¶¶ 4–10). They allegedly approved “illegal” contracts in violation
of various federal regulations. In doing so, Plaintiffs alleges that Defendants engaged in a civil
RICO conspiracy. (Id., ¶¶ 11–29).
Plaintiff fails to state a claim upon which relief can be granted. As a pro se litigant, he is
not permitted to prosecute a class action. See Olagues v. Timken, 908 F.3d 200, 203 (6th Cir.
2018) (citations and quotations omitted) (“We have long recognized, under 28 U.S.C. § 1654, that
plaintiffs in federal court may not appear pro se where interests other than their own are at stake.
Indeed, we have consistently interpreted § 1654 as prohibiting pro se litigants from trying to assert
the rights of others.”). And any individual civil RICO claim that Plaintiff could possibly bring is
barred by the statute of limitations applicable to such claims. Civil RICO claims have a four-year
statute of limitations. Agency Holding Corp. v. Malley–Duff & Assocs., Inc., 483 U.S. 143, 156,
(1987). Plaintiff has been incarcerated since 2008. Day, 700 F.3d at 718. Nothing in the
Complaint suggests that he only learned of his alleged injury in the past four years and that he
could not have discovered his injury earlier through the exercise of reasonable diligence. (See
generally Doc 1-1). So his civil RICO claims are barred by the statute of limitations as a result.
See Solis v. Emery Fed. Credit Union, No. 1:19-CV-387, — F. Supp. 3d —, 2020 WL 2319718,
at *8 (S.D. Ohio May 11, 2020) (citing Rotella v. Wood, 528 U.S. 549, 553 (2000)) (acknowledging
that that RICO’s four-year statute of limitations begins to run when a party knew, or through
exercise of reasonable diligence should have discovered, that the party was injured by a RICO
violation).
IV. CONCLUSION
Plaintiff’s request to proceed in forma pauperis is GRANTED. However, having
performed an initial screen and for the reasons set forth above, it is RECOMMENDED that the
Court DISMISS Plaintiff’s Complaint as for failure to state a claim.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: July 10, 2020 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE