Holmes v. United States of America

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROSALIND HOLMES, Case No. 1:20-cv-825

Plaintiff,

McFarland, J.

vs. Litkovitz, M.J.

UNITED STATES OF AMERICA, et al., REPORT AND

Defendants. RECOMMENDATION

On October 20, 2020, plaintiff Rosalind Holmes, a resident of West Chester, Ohio, filed a

complaint against 35 defendants, including the United States of America, former Federal Bureau

of Investigation (FBI) director James Comey, former director of the National Security Agency

Admiral Michael Rodgers, and former Attorney General Eric Holder; former FBI agents; the

City of Cincinnati, City officials, and City council members; plaintiff’s former attorney and law

firm; former Ohio Disciplinary Counsel officials; “Lakefront” and Lakefront Property and

Regional Managers; the Director of the University of Cincinnati Health Dental Center; PLK

Communities; and the State of Ohio. (Docs. 1-1, 5). On initial screening of plaintiff’s complaint

under 28 U.S.C. § 1915(e)(2)(B), the undersigned issued a Report and Recommendation

recommending that plaintiff’s complaint be dismissed for lack of federal jurisdiction and for

failure to state a claim upon which relief may be granted. (Doc. 7).

Plaintiff filed objections to the Report and Recommendation (Doc. 8) and an amended

complaint (Doc. 9) on November 12, 2020. In view of the filing of plaintiff’s amended

complaint, which is permitted “once as a matter of course” pursuant to Fed. R. Civ. P. 15(a)(1),

the District Judge determined that the Report and Recommendation should be denied as moot.

(Doc. 10).

This matter is now before the Court for a sua sponte review of plaintiff’s amended

complaint (Doc. 9) to determine whether the amended 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).

This matter is also before the Court on plaintiff’s motion for equitable tolling, breach of

contract, injunctive relief. (Doc. 6).

I. Standard of Review

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. § 1915(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 v. Williams, 490 U.S.

319, 328-29 (1989); 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. Iqbal, 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 Iqbal

and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and

1915(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.”

Iqbal, 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.” Iqbal, 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).

II. Plaintiff’s Amended Complaint

Plaintiff, an African American, was employed by the City of Cincinnati from November

2008 to December 2016. In her 109 page, 414 paragraph amended complaint, plaintiff has

named several new defendants in addition to the 35 previously named defendants: Jessica Banks,

Lakefront at West Chester Property Manager; Jacque Keller, Lakefront at West Chester Regional

Manager; Lakefront at West Chester; Georgia Pacific; Georgia Pacific Does; Enterprise Rent A

Car; and Enterprise Rent A Car Does. The amended complaint, which is brought against federal,

state, and City of Cincinnati officials and private individuals, alleges numerous federal and state

law violations. Plaintiff alleges, inter alia, that governmental officials failed to properly

investigate her complaints of unwarranted and illegal surveillance and discrimination. She

alleges that starting in 2009 through the present, defendants have engaged in a conspiracy to

violate her rights. She further alleges claims of employment discrimination under state and

federal law against the City of Cincinnati and Georgia Pacific. (Doc. 9, ¶ 7).

The amended complaint alleges, “Under Section 702 of the Foreign Intelligence

Surveillance Act, the government conducts warrantless surveillance on U.S. soil of vast

quantities of communications entering and leaving the United States—including communications

sent and received by Americans, like plaintiff.” (Doc. 9, ¶ 59). Plaintiff alleges that she

“reported this unauthorized surveillance to the appropriate authorities, who failed to investigate

her repeated complaints of constitutional violations.” (Id., at ¶ 67).

In 2014, she contacted the Cincinnati mayor, other City officials, and City council

members to complain about the “unauthorized surveillance taking place on her devices.” (Id., at

68-69). Plaintiff alleges that City officials failed to investigate her complaints about the

unauthorized surveillance and “conspiracy.” She also alleges she was wrongfully accused of

workplace violence in October 2014. Plaintiff states that officials failed to properly investigate

the accusation and conducted a “sham” hearing. The amended complaint also recounts

numerous instances of “gross negligent misconduct and fraud” by City officials, which allegedly

began in 2009.

Paragraphs 78 through 92 of the amended complaint contain allegations concerning a

“history of gross negligent misconduct and fraud by City officials” spanning from December

2009 through October 2013 relating to plaintiff’s employment with the City.

Plaintiff further alleges that in 2014 and 2015, she reported the unauthorized surveillance

and discrimination to the Fairfield, Ohio police, to a special agent with the Cincinnati FBI, to

congressional representatives, and to the Department of Justice. (Id., ¶¶ 94-103). The amended

complaint states that “[f]rom February 2015 to December 2019, plaintiff continued to provide the

DOJ [Department of Justice], OIG [Office of Inspector General], and elected officials such as

President Trump, and Senator Sherrod Brown with documentation and information describing

the ongoing harassment, discrimination, conspiracy and constitutional violations.” (Id., ¶ 104).

She alleges that the FBI failed to investigate her complaints and engaged in a conspiracy to

deprive her of her constitutional rights. (Id., ¶¶ 105-107).

Plaintiff states that in April 2020, she made a request under the Freedom of Information

Act to the FBI and OIG for “any and everything pertaining to her.” (Id., ¶ 109). In response,

plaintiff was advised that the FBI and OIG were unable to identify records responsive to her

request. Plaintiff alleges this was not truthful as she had previously contacted the Cincinnati

division of the FBI and made a report to an unknown investigator, which included supporting

documentation. Plaintiff states the Inspector General for the Department of Commerce (DOC)

acknowledged receiving her letter, but she did not know what the department did with her letter.

Plaintiff concluded that based on the FBI, OIG, and DOC’s responses, no investigations into

plaintiff’s complaints were conducted. (Id., ¶¶ 109-110).

Plaintiff further alleges that Elizabeth Tuck (Loring), her former attorney, failed to

adequately represent her before the Equal Employment Opportunity Commission (EEOC) in

connection with plaintiff’s allegations of employment discrimination against the City of

Cincinnati. She alleges that defendant Tuck filed duplicate EEOC charges without plaintiff’s

authorization. The amended complaint alleges that defendant Tuck represented plaintiff from

November 2012 through June 2014, and that defendants Randy Freking, Kelly Mulloy Myers

and George Reul, partners of the Freking, Myers & Reul law firm, failed to properly train,

supervise and correct the negligent actions of defendant Tuck. (Id., ¶¶ 111-121).

The amended complaint also alleges that in September 2014, the Ohio Disciplinary

Counsel wrongfully accused plaintiff of submitting fraudulent emails to the Disciplinary

Counsel in connection with her complaint against defendant Tuck. Plaintiff alleges that

Catherine Russo, Scott Drexel, and Joseph Caligiuri knew that the fraud accusations against

plaintiff were false; knowingly memorialized and publicized the false fraud accusations; and

did so to benefit the City of Cincinnati, Tuck, and Freking, Myers, & Reul. (Id., ¶¶ 122-137)

Plaintiff alleges that in July 2018, she was routinely followed and monitored by an

unknown FBI agent. She also alleges that from October 2018 to March 2019, she was

continuously denied employment and terminated from numerous jobs due to defendants’

continuous campaign against her. (Id., ¶¶ 138-157). She further alleges that she contacted

an attorney on June 13, 2019 to request legal assistance, but “[t]he government did not want

plaintiff to obtain legal representation , so they retaliated against plaintiff.” (Id., ¶ 160).

Plaintiff also alleges that in June 2019 defendants conspired with the University of

Cincinnati Medical Center to have plaintiff dismissed from its low-cost Dental Center in the

middle of having a dental implant developed for her front tooth. (Id., ¶¶ 161). She alleges that

she has been incapable of obtaining a dental implant. (Id.).

Plaintiff alleges that in July 2019, the “defendants continued to harass plaintiff by

conspiring with the Psychiatric Unit of a local hospital.” (Id., ¶ 162). The amended complaint

states, “Specifically, defendants had plaintiff involuntarily committed to the Psychiatric Unit

where drugs were forced onto plaintiff for no reason.” (Id.). Plaintiff alleges that while she was

involuntarily committed to the Psychiatric Unit, representative from Enterprise Rent A Car

contacted her several times about returning her rental vehicle. Plaintiff alleges she did not have

access to her cell phone and could not contact Enterprise Rent A Car or return the car in a timely

manner. (Id., ¶ 164).

Plaintiff alleges that in March 2020, she contacted organizations “to request legal

assistance with the ongoing conspiratorial campaign of unlawful actions taken against plaintiff

by the FBI and others. The government immediately conspired with Enterprise Rent A Car and

retaliated against plaintiff for attempting to obtain legal assistance from the organizations.” (Id.,

¶ 166). She alleges that defendants have conspired with Enterprise Rent-A-Car and had plaintiff

placed on the “Do Not Rent List.” (Id., ¶ 167). The amended complaint alleges that Enterprise

advised plaintiff she owed an amount of $671.00, which she denies, and failed to provide her

with a legitimate reason for placing her on the “Do Not Rent List.” (Id., ¶ 168).

The amended complaint further alleges that plaintiff was hired as a Plant Accountant for

Georgia Pacific on October 29, 2019 and fired on November 15, 2019. (Id., ¶ 172). On

November 15, 2019, plaintiff was advised she was being terminated because she did not “fit

within [the] culture.” (Id., ¶ 173). The divisional controller and senior human resources

manager refused to provide plaintiff with any explanation or reasons for the termination. (Id.).

On November 19, 2019, plaintiff “filed a complaint with the Ohio Civil Rights Commission

[OCRC] and the EEOC for race, sex, and retaliation based on her prior federal discrimination

lawsuit filed against the City of Cincinnati case number 1:14 CV 00582.” (Id., ¶ 174). During

the OCRC investigation, Georgia Pacific filed a position statement with an explanation for

plaintiff’s termination: “Given the amount of unsolicited feedback received about Charging

Party’s behavior within the first two weeks of employment, . . . Regional Controller concluded

that Charging Party’s interactions with colleagues were extraordinarily discourteous and

unprofessional, and that Plaintiff’s lack of interest and attentiveness during training sessions with

Ms. Cobb indicated that she was not receptive to coaching and training.” (Id., ¶ 175, Ex. K).

Plaintiff provided a rebuttal to this statement, alleging Georgia Pacific’s reason for termination

was false. (Id., ¶ 176, Ex. L). Plaintiff states she informed the OCRC that she was questioned

by the Plant Accountant about her previous federal discrimination lawsuit against the City of

Cincinnati. Plaintiff alleges this disclosure was a motivating factor for her termination. She

alleges she never received warnings or counseling from Georgia Pacific prior to her termination.

(Id., ¶¶ 177-183). Plaintiff also alleges that during her employment with Georgia Pacific, she

was treated less favorably than similarly situated non-African American employees with respect

to her termination. (Id., ¶ 403).

The amended complaint further alleges that from July 2019 to the present, plaintiff has

moved on three occasion due to defendants’ conspiratorial actions. Plaintiff alleges that

defendants have engaged in a conspiracy with the property management company of each

apartment community where plaintiff has lived to have her wrongfully evicted. In July and

August 2020, plaintiff advised the managers of Lakefront about the “ongoing conspiracy and

warrantless surveillance being conducted by the government.” (Id., ¶ 190). The managers

dismissed plaintiff’s claims as unfounded. Plaintiff alleges that in September 2020, the

Lakefront Property Manager ordered plaintiff to move out immediately in retaliation for

plaintiff’s communications with a local TV news outlet’s investigation team. Later, plaintiff was

told she could stay, but only after plaintiff had given all of her furniture away. Plaintiff further

alleges that after she included Jessica Banks and Jacque Keller as defendants in her complaint,

she notice that someone had entered her apartment and tampered with her belongings. (Id., ¶¶

191-196).

The amended complaint alleges:

Defendants have ruined plaintiff’s life and career by preventing her from gaining

employment, having her fired off several jobs, spreading false accusations, rumors,

thereby isolating plaintiff from meaning relationships with others and ruining every

relationship in her life including her marriage and divorce. Plaintiff has already

suffered from the irreparable harm to her financial stability, good reputation due to

Defendants’ conspiratorial false fraud accusations, continual discrimination,

retaliation, and warrantless surveillance. In addition, defendants have planted

camera’s and other devices in plaintiff’s home to continuous (sic), monitor, harass,

manage, conspire, dictate and control plaintiff[’s] entire life. The only way to repair

the damage to plaintiff is to grant immediate injunctive and declaratory relief and

to provide plaintiff with a new identity. For clarification, this is not an all-inclusive

description of defendants’ conspiratorial actions. However, it is just a summary of

defendants, unlawful behavior directed at plaintiff.

(Id., ¶ 197). Plaintiff alleges that from July 2009 through the present, all of the defendants

subjected her to discriminatory, conspiratorial, and malicious actions and have violated her

rights. (Id., ¶¶198-244).

Based on the foregoing, plaintiff brings the following causes of action: Count I: Federal

Constitutional Claim – Equal Protection and Due Process – Abuse of Power; Count II: Federal

Constitutional Claim – Equal Protection and Due Process – Gross Negligence; Count III: Federal

Constitutional Claim – Equal Protection and Due Process Violation – Discrimination; Count IV:

Federal Constitutional Claim – Unlawful Search and Seizure; Count V: Federal Constitutional

Claim – Equal Protection and Due Process Federal Conspiracy; Count VI: Federal Tort Claims

Act - Invasion of Privacy – intrusion upon Seclusion; Count VII: Federal Tort Claims Act –

Invasion of Privacy – False Light; Count VIII: Federal Tort Claims Act – Tortious Interference;

Count IX: Federal Tort Claims Act – Intentional Infliction of Emotional Distress; Count X:

Federal Tort Claims Act – Gross Negligence; COUNT XI: Plaintiff Rosalind Holmes v.

Defendants Comey, Holder, and Rogers Federal Constitutional Claim – Return and

Expungement of Information Unlawfully Searched and Seized; COUNT XII: Discrimination, 42

U.S.C. § 1981 – Discrimination & Retaliation; COUNT XIII: Discrimination – 42 U.S.C. § 1983

Deprivation of Rights; COUNT XIV: Discrimination – 42 U.S.C. § 1985 Conspiracy to Interfere

with Civil Rights; and COUNT XV: Conspiracy – 42 U.S.C. § 1986 Action for Neglect to

Prevent. Counts XVI through XXIII allege claims under Ohio law. Count XXIV alleges race

discrimination against Georgia Pacific and the City of Cincinnati under Title VII and Ohio law.

III. Resolution

At this stage in the proceedings, without the benefit of briefing by the parties to this

action, the undersigned concludes that plaintiff’s employment discrimination claim against

defendant Georgia Pacific is deserving of further development and may proceed at this

juncture. See 28 U.S.C. § 1915(e)(2)(B). However, the remainder of plaintiff’s amended

complaint fails to state a claim with an arguable basis in law over which this federal Court has

subject matter jurisdiction.

First, to the extent plaintiff may be invoking the diversity jurisdiction of the Court under

28 U.S.C. § 1332(a) with respect to her state law claims, the amended complaint reveals such

jurisdiction is lacking. In order for diversity jurisdiction pursuant to § 1332(a) to lie, the

citizenship of the plaintiff must be “diverse from the citizenship of each defendant” thereby

ensuring “complete diversity.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing State

Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531 (1967)); see also Napletana v. Hillsdale

College, 385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North American Res. Corp., 809 F.

Supp. 546, 551 (S.D. Ohio 1992). In this case, there is no complete diversity because plaintiff

and numerous defendants are residents of the State of Ohio. Therefore, this Court lacks subject

matter jurisdiction on the basis of diversity of citizenship over any state law claims plaintiff may

be alleging.

Second, the Court is without federal question jurisdiction over the amended complaint

with the exception of plaintiff’s race discrimination claim against Georgia Pacific. District

courts have original federal question jurisdiction over cases “arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331. In order to invoke the Court’s federal

question jurisdiction pursuant to 28 U.S.C. § 1331, plaintiff must allege facts showing the cause

of action involves an issue of federal law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63

(1987).

The majority of plaintiff’s causes of action do not state claims for relief because they are

time-barred. Plaintiff’s civil rights claims under § 1983 are governed by Ohio’s two-year statute

of limitations applicable to personal injury claims. See, e.g., Browning v. Pendleton, 869 F.2d

989, 992 (6th Cir. 1989) (holding that the “appropriate statute of limitations for 42 U.S.C. § 1983

civil rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10, which requires that

actions for bodily injury be filed within two years after their accrual”); see also Wallace v. Kato,

549 U.S. 384, 387 (2007) (and Supreme Court cases cited therein) (holding that the statute of

limitations governing § 1983 actions “is that which the State provides for personal-injury torts”);

Zundel v. Holder, 687 F.3d 271, 281 (6th Cir. 2012) (“the settled practice . . . to adopt a local

time limitation as federal law if it is not inconsistent with federal law or policy to do so” is

applicable “to § 1983 actions and to Bivens actions because neither the Federal Constitution nor

the § 1983 statute provides timeliness rules governing implied damages”) (internal citation and

quotation marks omitted). Plaintiff’s § 1985 and Bivens1 claims likewise have a two-year statute

of limitations. See Dotson v. Lane, 360 F. App’x 617, 620 n.2 (6th Cir. 2010) (§ 1985); Zappone

v. United States, 870 F.3d 551, 559 (6th Cir. 2017) (Bivens). Plaintiff’s § 1986 claim has a one-

year statute of limitations. See 42 U.S.C. § 1986 (“[N]o action under the provisions of this

section shall be sustained which is not commenced within one year after the cause of action has

accrued.”). Although the statute of limitations is an affirmative defense, when it appears clear on

initial screening of the complaint that the action is time-barred, the complaint may be dismissed

for failure to state a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199,

215 (2007). Cf. Fraley v. Ohio Gallia Cnty., No. 97-3564, 1998 WL 789385, at *1-2 (6th Cir.

Oct. 30, 1998) (holding that the district court “properly dismissed” the pro se plaintiff’s § 1983

civil rights claims under 28 U.S.C. § 1915(e)(2)(B) because the complaint was filed years after

Ohio’s two-year statute of limitations had expired); Anson v. Corr. Corp. Of America, No.

4:12cv357, 2012 WL 2862882, at *2-3 (N.D. Ohio July 11, 2012) (in sua sponte dismissing

complaint under 28 U.S.C. § 1915(e), the court reasoned in part that the plaintiff’s Bivens claims

asserted “six years after the events upon which they are based occurred” were time-barred under

Ohio’s two-year statute of limitations for bodily injury), aff’d, 529 F. App’x 558 (6th Cir. 2013).

Here, it is clear from the face of the amended complaint that plaintiff’s federal claims

regarding incidents from 2009 through October 2018 are time-barred. Plaintiff filed the instant

case on October 20, 2020, long after the two-year limitations period expired for most of her

claims in this case. Therefore, plaintiff’s claims which occurred prior to October 2018 are

1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

subject to dismissal at the screening stage on statute of limitations grounds.

Plaintiff contends that these claims should not be time barred under the doctrine of

equitable tolling. (Doc. 6). The Court disagrees.

Equitable tolling generally “applies when a litigant’s failure to meet a legally-mandated

deadline unavoidably arose from circumstances beyond that litigant’s control.” Graham–

Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2000) (citing

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)). Plaintiff bears the burden

of establishing equitable tolling applies to her claims. Jackson v. United States, 751 F.3d 712,

718-19 (6th Cir. 2014). To carry her burden, plaintiff must demonstrate more than just “a garden

variety claim of excusable neglect.” Zappone v. United States, 870 F.3d 551, 556 (6th Cir. 2017)

(quoting Chomic v. United States, 311 F.3d 607, 615 (6th Cir. 2004)).

Equitable tolling is applied sparingly. Zappone, 870 F.3d at 556 (citing Jackson, 751

F.3d at 718). Whether to apply equitable tolling in a given case “lies solely within the discretion

of the trial court.” Betts v. C. Ohio Gaming Ventures, LLC, 351 F. Supp. 3d 1072, 1075 (S.D.

Ohio 2019) (citing Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). Courts in the

Sixth Circuit consider five factors to determine whether the equitable tolling doctrine should be

applied. Zappone, 870 F.3d at 556 (citing Jackson, 751 F.3d at 718) (citing Truitt, 148 F.3d at

648). The factors are: (1) lack of notice of the filing requirement; (2) lack of constructive

knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of

prejudice to the defendant; and (5) the plaintiff’s reasonableness in remaining ignorant of the

particular legal requirement. Truitt, 148 F.3d at 648. These factors are considered on a case-by-

case basis. Id. They are not necessarily comprehensive, and the court may consider additional

factors. Betts, 351 F. Supp. 3d at 1075 (citing Allen v. Yukins, 366 F.3d 396, 401 (6th Cir.

2004)). See also Graham-Humphreys, 209 F.3d at 560-61 (citing Truitt, 148 F.3d at 648). Often

“the most significant consideration in courts’ analyses” will be the plaintiff’s “‘failure to meet a

legally-mandated deadline’ due to ‘unavoidab[le] . . . circumstances beyond’” the plaintiff’s

control, not any one of the five Truitt factors. Zappone, 870 F.3d at 556 (quoting Graham-

Humphreys, 209 F.3d at 560-61) (citations omitted).

Plaintiff alleges that equitable tolling of the statute of limitations should be applied in this

case for the following reasons:

Defendants actively misled plaintiff and prevented her from exercising her rights.

Throughout plaintiff’s federal discrimination lawsuit defendants actively engaged

in a secret conspiracy designed to violate plaintiff’s constitutional rights and

cover-up their unlawful actions. Specifically, from the period of July 2014 to the

present, defendants engaged in a conspiracy of false fraud allegations and

warrantless surveillance with the Ohio Office of Disciplinary Counsel, Elizabeth

Tuck, Freking, Myers, Reul and the FBI. Defendants, willfully, deliberately with

reckless disregard failed to disclose this information to plaintiff, prior to settlement

of her federal discrimination lawsuit. Plaintiff was completely unaware of

defendant’s conspiracy with the FBI, Elizabeth Tuck, Freking, Myers, Reul and

the Disciplinary Counsel, when she agreed to settle her federal discrimination

lawsuit. Plaintiff would not have agreed to settle her federal discrimination lawsuit

had she known of defendant’s conspiratorial behavior. Moreover, Plaintiff

pursued her claims with diligence, from the period of July 2009 to the present.

Plaintiff filed several complaints alleging among others, unauthorized

surveillance, conspiracy, retaliation, discrimination and attorney misconduct to the

City of Cincinnati, FBI, and the Ohio Disciplinary Counsel. Plaintiff has written

letters to Congressman John Boehner, President Barack Obama, Senator Sherrod

Brown, the U.S. Department of Justice and Office of the Inspector General for the

DOJ as described above asking for an investigation. Despite plaintiff’s diligent

efforts to discover her claims by contacting government regulators and officials

she was incapable of discovering her claims, because of defendants’ deceitfulness.

Thus, plaintiff has provided satisfactory evidence to prove the elements of a

fraudulent concealment by defendants.

(Doc. 6 at PAGEID 1145-1146).

Plaintiff has failed to allege facts justifying equitable tolling in this case. Her conclusory

allegations of a secret conspiracy, warrantless surveillance, and retaliation are insufficient to

meet her burden to show her failure to meet the statutory deadlines for filing her causes of action

were due to circumstances beyond her control. Zappone, 870 F.3d at 556. Nor has plaintiff

shown that she satisfied the five Truitt factors. Plaintiff fails to present an argument or

explanation why the facts of this case warrant the benefit of equitable tolling. Because plaintiff’s

federal claims are time-barred and the doctrine of equitable tolling does not apply, her claims

pre-dating October 2018 should be dismissed.

Moreover, to the extent plaintiff seeks to resurrect her discrimination claims against the

City of Cincinnati that she settled in a previous case (Holmes v. Cincinnati, No. 1:14-cv-582),

the doctrine of equitable tolling is not applicable. Plaintiff essentially seeks to vacate the

settlement of a previous lawsuit against the City of Cincinnati based on an alleged “secret

conspiracy to violate” her rights. Filing a second complaint is not the proper vehicle for seeking

relief from a previously settled lawsuit against the same defendant.

With respect to the claims that may not be time-barred, the undersigned is unable to

discern from the facts alleged in the amended complaint any federal statutory or constitutional

provision that applies to give rise to an actionable claim for relief. Plaintiff alleges that from

October 2018 to March 2019, she was continuously denied employment and terminated from

numerous jobs due to defendants’ continuous campaign against her; that in June 2019

defendants conspired with the University of Cincinnati Medical Center to have plaintiff

dismissed from its low-cost Dental Center; that defendants conspired with Enterprise Rent-A-Car

to have plaintiff placed on the “Do Not Rent List”; and that defendants engaged in a conspiracy

with the property management company of each apartment community where plaintiff has lived

to have her wrongfully evicted.

Plaintiff’s conspiracy claims must be dismissed. Plaintiff’s amended complaint provides

no factual content or context from which the Court may reasonably infer that the defendants

conspired against plaintiff to violate her constitutional rights. Iqbal, 556 U.S. at 678. Plaintiff’s

allegations of conspiracy are unsupported by specific facts, amount to legal conclusions couched

as factual allegations, and are insufficient to give the defendants or the Court notice of the factual

basis for plaintiff’s conspiracy claims. Twombly, 550 U.S. at 555. “It is ‘well-settled that

conspiracy claims must be pled with some degree of specificity and that vague and conclusory

allegations unsupported by material facts will not be sufficient to state such a claim under §

1983.’” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008) (quoting Gutierrez v. Lynch, 826 F.2d

1534, 1538 (6th Cir. 1987)). Plaintiff has not alleged factual allegations to support the inference

that a single conspiratorial plan existed, that the alleged co-conspirators shared in the general

conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy.

See Anderson v. Cnty. of Hamilton, 780 F. Supp.2d 635, 643-44, 652 (S.D. Ohio 2011) (and

cases cited therein). Plaintiff’s allegations are simply too conclusory to state a claim of a

conspiracy to violate a right protected by § 1983. Accordingly, plaintiff’s claims of conspiracy

under Section 1983 should be dismissed against all of the defendants.

Section 1985 of Title 42 provides a cause of action for conspiracy to deprive an

individual equal protection of the law. See 42 U.S.C. § 1985(3). To state a § 1985(3) claim,

plaintiff must show that (1) two or more persons conspired (2) for the purpose of depriving the

plaintiff of the equal protection of the laws due to racial or class-based discriminatory animus,

(3) an act “in furtherance of the object of such conspiracy” and (4) an injury to the plaintiff

resulting from such act. See United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-

29 (1983). See also Ashbiegu v. Purviance, 76 F. Supp. 2d 824, 830 (S.D. Ohio 1998). As with

her Section 1983 conspiracy claim, plaintiff has failed to plead specific facts in support of her §

1985 conspiracy claims as related to the incidents that are not time-barred. Plaintiff has alleged

no facts showing that defendants’ actions were in any way motivated by racial or class-based

animus. In addition, the amended complaint fails to state a claim under 42 U.S.C. § 1985(2),

which pertains to conspiracies aimed at deterring witnesses or jurors in federal court. Plaintiff’s

amended complaint contains no allegations whatsoever that could plausibly be construed as

stating a claim under this subsection for claims that are not time-barred. Therefore, plaintiff’s

conspiracy claims under Section 1985 should be dismissed.

As plaintiff has no viable claim under 42 U.S.C. § 1985, she also has no claim under 42

U.S.C. § 1986. “Section 1986 establishes a cause of action against anyone, who has knowledge

of a conspiracy under § 1985, and having power to prevent or aid in preventing the commission

of the same, neglects or refuses so to do.” Radvansky v. City of Olmstead Falls, 395 F.3d 291,

314 (6th Cir. 2005) (internal quotation marks omitted). Because the amended complaint does not

state a claim under § 1985, it necessarily follows that there can be no liability under § 1986. Id.

at 315. Therefore, plaintiff’s claim under 42 U.S.C. § 1986 should also be dismissed for failure

to state a claim for relief.

The Court notes that plaintiff’s 24 causes of action do not include a claim for a violation

of the Freedom of Information Act. In any event, it appears that plaintiff fails to state a claim for

relief under the FOIA because she has failed to allege that she made a proper FOIA request; the

records requested fall within the purview of the statute; and she has exhausted the available

administrative remedies prior to bringing an action in federal court. See Sykes v. United States,

507 F. App’x. 455, 463 (6th Cir. 2012).

In sum, with the exception of plaintiff’s employment discrimination claim against

Georgia Pacific, the amended complaint provides no factual content or context from which the

Court may reasonably infer that the named defendants violated plaintiff’s rights. Iqbal, 556 U.S.

at 678. Accordingly, plaintiff’s amended complaint should be dismissed for lack of federal

jurisdiction and for failure to state a claim upon which relief may be granted.

IV. Plaintiff’s motion for equitable tolling, breach of contract, injunctive relief (Doc. 6)

As discussed above, plaintiff’s motion for equitable tolling should be denied. The

remainder of plaintiff’s motion should also be denied as the sole cause of action remaining after

screening, her employment discrimination claim against Georgia Pacific, is unrelated to the relief

requested in this motion. In addition, the reasons for the Court’s recommendation for dismissal

of the remainder of plaintiff’s claims are unrelated and distinct to the “defenses” and relief

plaintiff seeks through her motion. For example, plaintiff asserts “equitable estoppel as a

defense in deciding whether to grant certain defendants dismissal based upon them having

vacated or loss of their positions through the elections process or otherwise.” (Doc. 6 at 29).

This “defense” has no bearing on whether any of the claims against the named defendants should

be dismissed. Therefore, the motion (Doc. 6) should be denied.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff’s amended complaint be DISMISSED with prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(B), with the exception of plaintiff’s employment discrimination claim against

Georgia Pacific.

2. Plaintiff’s motion for equitable tolling, breach of contract, injunctive relief (Doc. 6) be

DENIED.

3. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith

and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to

proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,

803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277

(6th Cir. 1997).

IT IS THEREFORE ORDERED THAT:

1. As plaintiff has previously been granted leave to proceed in forma pauperis,

within thirty (30) days of receipt of this Order, plaintiff is ORDERED to submit a copy of her

amended complaint, a completed summons form, and a United States Marshal form for

defendant Georgia Pacific for purposes of service of process by the United States Marshal.

2. The Clerk of Court is DIRECTED to send to plaintiff a summons form and a

United States Marshal form for this purpose. Upon receipt of the completed summons and

United States Marshal forms, the Court shall order service of process by the United States

Marshal in this case.

3. Plaintiff shall inform the Court promptly of any changes in her address which

may occur during the pendency of this lawsuit.

Karen L. Litkovitz

United States Magistrate Judge

19

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROSALIND HOLMES, Case No. 1:20-cv-825

Plaintiff,

McFarland, J.

vs. Litkovitz, M.J.

UNITED STATES OF AMERICA, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report 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 on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).