Atkinson v. Atkinson

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ROBERT L. ATKINSON,

Plaintiff, Case No. 3:20-cv-306

vs.

TONI D. ATKINSON, District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF’S COMPLAINT

BE DISMISSED WITHOUT PREJUDICE ON INITIAL REVIEW UNDER 28 U.S.C. §

1915; (2) SERVICE OF PROCESS NOT ISSUE; AND (3) THIS CASE BE TERMINATED

ON THE DOCKET

______________________________________________________________________________

This civil case is before the Court on pro se Plaintiff’s complaint filed in forma pauperis

(“IFP”). Doc. 1-2. In accordance with 28 U.S.C. §1915(e)(2), this Court must sua sponte perform

an initial review of the instant action and dismiss any case that is “frivolous or 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)(B); see also McGore v. Wrigglesworth, 114 F.3d

601, 604-05 (6th Cir. 1997); Neitzke v. Williams, 490 U.S. 319, 324 (1989).

In conducting this initial review under § 1915, the Court accepts pro se Plaintiff’s

allegations as true and construes them liberally in his favor. See Donald v. Marshall, No. 84-3231,

1985 WL 13183, at *1 (6th Cir. Apr. 5, 1985) (stating that, “[w]hen considering a pro se action

for dismissal pursuant to 28 U.S.C. § 1915(d), the complaint should be liberally construed and the

allegations of the complaint must be taken as true and construed in favor of the plaintiff”).

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and

Recommendation.

However, while pro se pleadings are “to be liberally construed” and are “held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam), pro se plaintiffs must still satisfy basic pleading requirements. Wells v. Brown, 891

F.2d 591, 594 (6th Cir. 1989).

In addition to the review required by § 1915, “federal courts have a duty to consider their

subject matter jurisdiction in regard to every case and may raise the issue sua sponte.” Answers

in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). In fact,

Courts must “determine whether [they] have subject-matter jurisdiction over a case before

proceeding at all.” In re Lee, 880 F.3d 242, 243 (6th Cir. 2018).

“The bedrock principle of the federal judicial system is that federal courts are courts of

limited jurisdiction.” EBI-Detroit, Inc. v. City of Detroit, 279 F. App’x 340, 344 (6th Cir. 2008).

Because federal courts are courts of limited jurisdiction, courts must presume “that a cause lies

outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party

asserting jurisdiction.” Farmer v. Fisher, 386 F. App’x 554, 556 (6th Cir. 2010) (citation omitted).

Thus, “[a] plaintiff in federal court has the burden of pleading sufficient facts to support the

existence of the court’s jurisdiction.” Vaughn v. Holiday Inn Cleveland Coliseum, 56 F. App’x

249, 250 (6th Cir. 2003). “Generally speaking, the Constitution and Congress have given federal

courts authority to hear a case only when the case raises a federal question or when diversity of

citizenship exists between the parties.” EBI-Detroit, Inc., 279 F. App’x at 344 (citing Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987)); see also 28 U.S.C. § 1331 (“The district courts shall

have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

United States”); 28 U.S.C. § 1332(a)(1) (“The district courts shall have original jurisdiction of all

civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between -- citizens of different States”).

Here, Plaintiff purports to assert a personal injury cause of action against his wife for

transmitting to him a sexually transmitted disease. Doc. 1-2. Such tort action is not one over

which the Court possesses federal question jurisdiction. Plaintiff also sets forth no allegations

showing that this Court possesses diversity jurisdiction over this action under 28 U.S.C.

§ 1332(a)(1). Plaintiff is an Ohio resident and it appears that Defendant is also an Ohio resident.

See doc. 1-3. Absent a federal cause of action or diversity among the parties, the Court lacks the

jurisdiction to proceed in this matter.

Accordingly, the undersigned RECOMMENDS that: (1) this case be DISMISSED

WITHOUT PREJUDICE to refiling in a state court of competent jurisdiction; (2) service of

process not issue; and (3) this action be TERMINATED on the Court’s docket.

Date: August 19, 2020 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however,

this Report and Recommendation was served upon you by mail, this deadline is extended to

SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the

deadline to file objections by filing a motion for extension, which the Court may grant upon a

showing of good cause.

Any objections filed shall specify the portions of the Report and Recommendation objected

to, and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based, in whole or in part, upon matters occurring of record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs.

A party may respond to another party’s objections within FOURTEEN days after being

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,

however, this Report and Recommendation was served upon you by mail, this deadline is extended

to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50

(6th Cir. 1981).