The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TAVON M. MAYS,
Plaintiff,
v. Civil Action 2:21-cv-2604
Judge Sarah D. Morrison
Magistrate Judge Jolson
MICHAEL DILLON,
Defendant.
REPORT AND RECOMMENDATION AND ORDER
This matter is before the Undersigned on Plaintiff’s Motion for Leave to Proceed in forma
pauperis. (Doc. 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). Furthermore, having performed an initial screen and for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint (Doc. 1-1).
I. BACKGROUND
Plaintiff filed the instant action on May 19, 2021, against Defendant Whitehall Police
Officer Michael Dillion. (See generally Doc. 1-1). Therein, Plaintiff alleges that Defendant
“interfered with a custody order that [Plaintiff] had for his son[.]” (Id. at 3). In doing so, Plaintiff
alleges, Defendant “violated [his] constitutional rights to due process.” (Id.). In terms of relief,
Plaintiff represents that he “want[s] the Courts to make sure Whitehall police don’t go against an
order that a judge puts in place [and] . . . to be compensated for time and money . . . invested on
this claim.” (Id).
Upon initial review, the Undersigned was unable to determine whether Plaintiff’s
Complaint brings a cognizable claim for relief as required by Rule 8(a)(2) of the Federal Rules of
Civil Procedure. (Doc. 2). Accordingly, the Undersigned issued a show cause order directing
Plaintiff to allege more specific facts supporting the allegations in his Complaint. (Id.). Plaintiff
filed his response to the Show Cause Order on May 25, 2021. (Doc. 3). Accordingly, Plaintiff’s
Complaint is now ripe for screening. First, however, the Undersigned briefly discusses Plaintiff’s
previous history litigating in this Court.
Plaintiff is no stranger to litigating in this Court. In fact, the instant action is the fourth
suit, in the past year, he has filed in this Court. See Mays v. The Columbus Police Dept. et al.,
2:20-cv-01060-EAS-KAJ (S.D. Ohio Feb. 26, 2020); Mays v. Franklin Cnty. Corr. Center, 2:21-
cv-00986-EAS-KAJ (S.D. Ohio Mar. 9, 2021); Mays v. Baldwin, 2:21-cv-02602-ALM-CMV
(S.D. Ohio May 19, 2021). The three other cases, which the Court concluded are related and have
been consolidated, all relate to Plaintiff’s previous criminal adjudication and incarceration. The
instant action, however, arises under an entirely separate set of facts.
Considering these numerous filings, the Undersigned finds it prudent to remind Plaintiff
that the Court has a responsibility to “prevent litigants from unnecessarily consuming judicial
resources needed by others.” U.S. v. Rotnem, 5:16-cr-388, 2020 WL 2063408, at *2 (N.D. Ohio
Apr. 29, 2020). In doing so, the Court has discretion to “enjoin[] vexatious and harassing litigants
by requiring them to obtain leave of court before submitting additional filings.” Id. (citing Filipas
v. Lemons, 835 F.2d 1145, 1146 (6th Cir. 1987)). While the Court takes no such action here,
Plaintiff should be aware that if he continues to file duplicitous and frivolous lawsuits, he may be
subject to such enjoinment.
II. 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). “A claim is frivolous if it lacks ‘an arguable basis either in law or in fact.’” Flores
v. U.S. Atty. Gen., No. 2:14-CV-84, 2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014) (citing
Neitzke v. Williams, 490 U.S. 319, 325 (1989)). This occurs when “indisputably meritless” legal
theories underlie the complaint, or when a complaint relies on “fantastic or delusional” allegations.
Flores, 2014 WL 358460, at *2 (citing Neitzke, 490 U.S. at 327–28).
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). “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
On its face, Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
And the scant factual allegations in his recent Response to the Show Cause Order do nothing to
change that conclusion. (See generally Doc. 3). In that Response, Plaintiff claims:
[T]hat he showed [Defendant] custody papers on the day of the alleged incident,
stating that [Plaintiff] was supposed to pick his son up at the school. [Plaintiff] also
told [Defendant] there was a pending custody case involving [him] and [the] child’s
mother. [Defendant] went against the order without substantial proof that the child
was in danger.
(Id. at 1). Finally, Plaintiff represents that Defendant “had no right to violate [his] fourteenth
amendment rights[,]” and also alleges a violation of Ohio Rev. Code § 2919.23––Interference with
Custody. (Id.). This is the entirety of Plaintiff’s Response. Taken together with the precursory
allegations in the Complaint (see Doc. 1-1), Plaintiff has failed to state a claim upon which relief
can be granted.
First, to the extent Plaintiff is bringing a claim under 42 U.S.C. § 1983 for an alleged
denial of his “constitutional right to due process,” he has failed to connect Defendant to any harm
he allegedly suffered. “Two traditional tort principles show that a § 1983 plaintiff generally must
prove both that a defendant was personally at fault and that the defendant’s culpable conduct (not
somebody else’s) caused the injury.” Pineda v. Hamilton Cnty., Ohio, 977 F.3d 483, 490 (6th Cir.
2020) (emphasis in original) (citing Manuel v. City of Joliet, 137 S.Ct. 911, 920 (2017); Filarsky
v. Delia, 566 U.S. 377, 380 (2012)). Here, Plaintiff only alleges a general deprivation of his
constitutional rights, but does not sufficiently connect Defendant to that deprivation, arguing only
that he “interfered with a custody order.” (Doc. 1-1 at 2). Accordingly, dismissal is appropriate.
Second, to the extent Plaintiff is alleging a state law claim under Ohio Rev. Code § 2919.23,
this Court does not have diversity jurisdiction over any such claim because Plaintiff, an Ohio
resident, is suing another Ohioan. When federal jurisdiction is based on diversity of citizenship,
complete diversity must exist between all adverse parties. Lincoln Prop. Co. v. Roche, 546 U.S.
81, 89 (2005) (citing Strawbridge v. Curtiss, 7 U.S. 267, 267 (1806)). Furthermore, because any
federal-question claims fail, see supra, the Court has no hook for supplemental jurisdiction. When
all federal claims are dismissed before trial, state-law claims “generally should be dismissed as
well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009).
IV. CONCLUSION
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 foregoing reasons, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint (Doc. 1-1).
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). 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, 152–53 (1985).
IT IS SO ORDERED.
Date: June 2, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE