McConnaughy v. The Times Leader Newspapaer

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK ALLEN MCCONAUGHY,

Plaintiff,

Case No. 2:21-cv-2237

vs. Judge Michael H. Watson

Magistrate Judge Elizabeth P. Deavers

THE TIMES LEADER

NEWSPAPER,

Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, an Ohio resident who is proceeding without the assistance of counsel, moves

this court for leave to proceed in forma pauperis. (ECF No. 1.) 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).

This matter is now before the Court for the initial screen of Plaintiff’s Complaint under

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 action in its entirety.

I.

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)1 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;

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

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).

1Formerly 28 U.S.C. § 1915(d).

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 Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 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)).

II.

Plaintiff names as Defendant “The Times Leader Newspaper,” which appears to be the

local newspaper in Martins Ferry, Ohio. (ECF No. 1-2, at 1.) Plaintiff alleges a violation of his

14th Amendment rights as follows, restated verbatim:

The Times Leader did knowingly violate Section 2 of 2717.01A2 of the Ohio

Revised Codes in the publication of my current and future name when severe safety

issues did exist. Belmont County Probate Court did release this information to the

Times Leader also in violation of said Revised Code! This publication was reported

to a radio talk show by Lyn Cole to 106.3 “The River” which did broadcast my

information to untold thousands of people with no regard of possible personal

safety issues. The actions by these three entities is a violation of my civil rights for

I have a civil right to be free of harm as do my daughter [KKM], a minor, and also

named on my petition to the legal change of name! The release of my information

was an attempt by the Times Leader and Belmont County Probate Court to assinate

my character and ruin my reputation in violation of 1948 U.N. Charter of Human

Rights. The actions of the Times Leader has severely inhibited me from protecting

myself and my child from harm against those who seek my life and has forever

prevented me from changing my name to that which I truly choose! The Belmont

County Courthouse is using the local police to intimidate me and refusing me access

to the judicial system in violation of my 14th Amendment rights under the U.S.

Constitution!

(Id. at 3.)

In this case, Plaintiff checked the box on the form complaint for subject matter

jurisdiction indicating that this Court has jurisdiction under 28 U.S.C. § 1331 (a lawsuit “arising

under the Constitution, laws, or treaties of the United States.”) Plaintiff, however, fails to state a

claim arising under federal law.

First, Plaintiff’s allegation of a violation of Article 12 of the 1948 U.N. Charter of Human

Rights may be a reference to the Universal Declaration of Human Rights (UDHR). As one court

has explained:

The UDHR recognizes the right to be free from torture. UDHR, G.A. Res.

217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (1948). The District of

Columbia Circuit described the Universal Declaration as “merely a non-binding

resolution.” Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 816 n. 17

(D.C.Cir.1987). Moreover, at the time of its adoption in 1948, it was the explicit

position of the United States that the Declaration “is not a treaty ... [or] an

international agreement” and that “[i]t is not and does not purport to be a statement

of law or of legal obligation.” 19 Dep't State Bull. 751 (1948) (remarks of Eleanor

Roosevelt, then a U.S. delegate to the General Assembly). The UDHR is merely a

resolution of the United Nations, and is neither binding on the United States nor on

this court. Flores v. S. Peru Copper Corp., 343 F.3d 140, 165 & n. 36, 167-68 & n.

38, 169 (2d Cir.2003).

Taylor v. Vivid Video, No. 5:08 CV 0274, 2008 WL 744212, at *2 (N.D. Ohio Mar. 19, 2008).

Accordingly, the Court does not construe Plaintiff’s reference to the 1948 U.N. Charter as

sufficient to state a claim for any violation of his civil rights.

To the extent Plaintiff claims Defendant violated his Fourteenth Amendment rights, “[t]o

proceed on a claim under 42 U.S.C. § 1983, a plaintiff must show that a person acting under

color of state law deprived the plaintiff of a right secured by the Constitution or laws of the

United States.” Vistein v. Am. Registry of Radiologic Technologists, 342 F. App’x 113, 127 (6th

Cir. 2009); see also Rubin v. Fannie Mae, 587 F. App’x 273, 275 (6th Cir. 2014) (concluding

that due process claim failed as a matter of law where the defendant was not a state actor); Horen

v. Bd. of Educ. of Toledo City Sch. Dist., 594 F. Supp. 2d 833, 843 (N.D. Ohio 2009) (“Because

defendants are not state actors, they cannot be held liable under the Fourteenth Amendment.”)

(citing Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974) (“‘[P]rivate conduct, however

discriminatory or wrongful,’ falls outside the scope of the Fourteenth Amendment[.]”)). “The

principal inquiry to be undertaken in determining whether a private party’s actions constitute

‘state action’ is whether the party’s actions may be ‘fairly attributable to the State.’” Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Here, Plaintiff has not alleged that the Defendant newspaper is a state actor or that its

conduct constitutes state action. Plaintiff therefore has failed to state a federal claim based on an

alleged violation of his civil rights. Moreover, “generally, a newspaper is a private enterprise,

not a state actor and cannot be held liable under § 1983 for publishing the news. This remains

true even when the newspaper publishes information received from police or other state

officials.” Hall v. Witteman, No. 07-4128-SAC, 2008 WL 4490620 (D. Kan. Oct. 1, 2008)

(internal citations omitted); see also Marshall v. Duncan, No. CIV A 3:10CV-11-H, 2010 WL

1418736, at *2 (W.D. Ky. Apr. 6, 2010) (finding that defendant news providers and their

employees were not state actors); Davis v. Janczewski, 22 F. App'x 533, 534 (6th Cir.2001)

(“[D]efendant Janczewski cannot be said to have been acting under color of state law in

reporting for a local newspaper.”).

To be clear, “[to] act ‘under color of’ state law for § 1983 purposes does not require that

the defendant be an officer of the State. It is enough that he is a willful participant in joint action

with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 28 n. 4 (1980) (citing Adickes v. S.H.

Kress & Co., 398 U.S. 144, 152 (1970); United States v. Price, 383 U.S. 787, 794 (1966)).

However, absent any allegation suggesting the existence of a conspiracy or joint action with state

agents, no § 1983 liability can attach to the Defendant newspaper. See, e.g., Noble v. Husted,

No. 1:13-CV-00666, 2013 WL 5819664, at *4 (S.D. Ohio Oct. 29, 2013) (under the facts as

alleged, radio station defendants were private parties, not state actors). Plaintiff’s conclusory

references to the Belmont County Probate Court or the “Belmont County Courthouse” are

insufficient to suggest any joint action and therefore, do not support a different outcome. For all

of these reasons, Plaintiff cannot maintain a § 1983 claim against Defendant newspaper because

it is not a state actor.

Finally, pendent jurisdiction under 28 U.S.C. § 1367 should not be exercised to consider

any state-law claims that are alleged in the complaint because plaintiff has failed to state a

federal claim for relief. See United States Mine Workers v. Gibbs, 383 U.S. 715 (1966); see also

Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.2009) (quoting Wojnicz v. Davis, 80 F. App'x 382,

384–85 (6th Cir.2003)) (“If the federal claims are all dismissed before trial, the state claims

generally should be dismissed as well.”).

Accordingly, the Court concludes that Plaintiff's complaint is subject to dismissal as

frivolous under 28 U.S.C. § 1915(e)(2)(B) and for lack of subject matter jurisdiction under

Federal Rule of Civil Procedure 12(h)(3). See, e.g., Noble, 2013 WL 5819664, at *7 (explaining

that, where there is no basis for federal jurisdiction apparent on the face of the complaint, a court

may dismiss the action as frivolous and for lack of subject matter jurisdiction under 28 U.S.C. §

1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3)).

III.

For the reasons set forth above, it is RECOMMENDED that the Complaint in its

entirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). It is FURTHER

RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the

foregoing reasons an appeal of any Order adopting this Report and Recommendation would not

be taken in good faith and therefore, if Plaintiff moves for leave to appeal in forma pauperis, that

such request be denied. 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).

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

IT IS SO ORDERED.

/s/ Elizabeth A. Preston Deavers______

DATED: May 11, 2021 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE