Benner v. DeJoy

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOEL STEPHEN BENNER,

Plaintiff,

v. Civil Action 2:21-cv-1620

Judge James L. Graham

Magistrate Judge Chelsey M. Vascura

LOUIS DEJOY, Postmaster General,

Defendant.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Joel Stephen Benner, an Ohio resident proceeding without the assistance of

counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. 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). This

matter is also before the Court for the initial screen of Plaintiff’s Complaint as required by 28

U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which 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). Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that the Court DISMISS Plaintiff’s claims pursuant to 28 U.S.C.

§ 1915(e)(2).

I. BACKGROUND

Plaintiff’s Complaint is difficult to parse, but his claims clearly arise out of his former

employment with the United States Postal Service (“USPS”). Plaintiff appears to argue that the

oath he took to uphold the United States Constitution as a USPS employee created a contractual

obligation for him to report wrongdoing by USPS employees or inefficiencies in the USPS’s

operations, but that USPS breached the contract by failing to take appropriate responsive actions.

(Compl. 1, ECF No. 1-1.) He also contends that the oath of office is unconstitutional. (Id. at 3,

10.)

His Complaint further documents numerous incidents during the period of July 2019

through November 2020 in which Plaintiff complained to superiors about working conditions or

coworkers and characterizes himself as “blowing the whistle.” (Id. at 11.) On two occasions,

Plaintiff was reprimanded: on June 3, 2020, Plaintiff received a letter of warning for improper

conduct involving eating outside the designated break room; and on June 16, 2020, Plaintiff was

suspended for seven days for clocking out early. (Id.) Ultimately, on an unspecified date,

Plaintiff resigned from USPS. (Id. at 12.) The Complaint also makes passing reference to

“retaliation” as a result of his “blowing the whistle.” (Id.) Plaintiff seeks $900,000 in punitive

damages. (Id. at 1.)

II. STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that–

* * *

(B) the action or appeal--

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010) (quoting Haines

v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “courts should

not have to guess at the nature of the claim asserted.” Frengler v. Gen. Motors, 482 F. App’x

975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III. ANALYSIS

The undersigned construes Plaintiff’s Complaint as seeking to advance claims for breach

of contract, retaliation, and violation of unspecified constitutional rights. Plaintiff has not

sufficiently alleged a breach of contract claim because he has not identified a contract between

himself and USPS. See V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012)

(“Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a contract;

(2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the

plaintiff as a result of the breach.”). Plaintiff’s retaliation allegations are also insufficient

because he has not alleged any causal connection between his activities and any adverse action

by USPS. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (“A retaliation claim

essentially entails three elements: (1) the plaintiff engaged in protected conduct; (2) an adverse

action was taken against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in that conduct; and (3) there is a causal connection between elements one

and two—that is, the adverse action was motivated at least in part by the plaintiff's protected

conduct.”). Finally, Plaintiff’s passing references to his oath of office being “unconstitutional”

do not suffice to put USPS on notice of any constitutional claims against it. “Even a pro se

pleading must provide the opposing party with notice of the relief sought, and it is not within the

purview of the district court to conjure up claims never presented.” Frengler, 482 F. App’x at

977. Accordingly, Plaintiff has failed to state a claim on which relief can be granted.

IV. DISPOSITION

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis is GRANTED. In addition,

for the foregoing reasons, it is RECOMMENDED that Plaintiff’s claims be DISMISSED

pursuant to 28 U.S.C. § 1915(e)(2).

PROCEDURE ON OBJECTIONS

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.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE