McConnaughy v. Taylor

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK ALLEN MCCONAUGHY,

Plaintiff,

Case No. 2:21-cv-3926

vs. Judge Michael H. Watson

Magistrate Judge Elizabeth P. Deavers

EMILY TAYLOR,

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 Emily Taylor as the sole defendant. (ECF No. 1-1, at 1.) Plaintiff’s

Complaint restated here verbatim alleges, in its entirety, as follows:

Emily Taylor, acting under color of law did knowingly, intentionally and with

malice deny my person of welfare benefits in violation of the 1970 U.S. Supreme

Court ruling of Goldberg v. Kelly 397 US 254 which demands due process to satisfy

ones 14th Ammendment rights under the U.S. Constitution. Before denial or

termination of said benefits may be exercised. To reinforce the seriousness of this

motion, the defendants behavior is also a violation of Title 18 USC Section 242

which is a criminal offense and may be investigated by the F.B.I. Emily Taylor

electronically transferred my benefits onto a card that she knew was destroyed 4

years previously. I have proof of this fact! I also have proof of personal animosity

towards me by Emily Taylor. I thus requested a state hearing seeking only $350.00

but was unjustly denied. I then filed a small claim in the Belmont County Ohio

Courthouse Western Division before Judge Costine Case Number 21SCI00010W

where Emily Taylor, Jeff Felton (her supervisor) and her attorney David C. Moser

(00090834) committed defamation of my person with “the trial brief of Emily

Taylor.” Judge Costine allowed this in his courtroom! I was yet again unjustly

denied. I then filed paper for a appeal at the 7th Circuit Court of Appeals in

Youngstown, Ohio but “strings” are being pulled yet again! I therefor wish to file

this motion and stop asking but $350.00

(Id. at 3.)

Plaintiff states that he brings this action pursuant to 28 U.S.C. § 1331 and seeks

“$1,000,000.00 in damages.” (Id. at 2, 4.)

The Complaint filed in this case fails to state a claim and is subject to summary dismissal.

To state a procedural due process claim, Plaintiff must establish three elements: (1) that he has a

property interest protected by the Due Process Clause; (2) that he was deprived of this property

interest; and (3) that the state did not afford him adequate pre-deprivation procedural rights.

Cahoo v. SAS Analytics Inc., 912 F.3d 887, 900 (6th Cir. 2019) (citing Chandler v. Vill. of

Chagrin Falls, 296 F. App'x 463, 468 (6th Cir. 2008)). Here, Plaintiff offers only his legal

conclusion that he was deprived of due process in connection with the alleged denial of welfare

benefits in the amount of $350.00. This statement, however, is unaccompanied by any relevant

supporting facts. Such “bare bones” and conclusory assertions regarding the alleged deprivation

of his welfare benefits do not suffice to state a cognizable constitutional claim. Coker v. Summit

Cty. Sheriff's Dep't, 90 F. App'x 782, 787 (6th Cir. 2003); see also Baker v. DeWine, No. 2:18-

CV-1270, 2019 WL 1934438, at *4 (S.D. Ohio May 1, 2019), appeal dismissed, No. 19-3530,

2019 WL 6492395 (6th Cir. Sept. 10, 2019) (“A plaintiff fails to state an adequate claim when

his allegations are premised upon mere conclusions and opinions.”); Parker v. Beard, No. CV

0:20-144-WOB, 2021 WL 1820644, at *2 (E.D. Ky. May 6, 2021) (“A conclusory claim that

Defendants violated [Plaintiff’s] constitutional rights, with no factual allegations supporting such

a claim, is insufficient to state a claim for relief.”) This is especially so here where certain other

allegations in the Complaint suggest that he was not denied benefits but that his benefits were

transferred to a card that he describes as having been destroyed. Further, to the extent that

Plaintiff may be alleging a violation of 18 U.S.C. § 242, that is a criminal statute and Plaintiff

has no private right of action thereunder. United States v. Oguaju, 76 F. App'x 579, 581 (6th Cir.

2003).

For all of these reasons, it is RECOMMENDED that the Court dismiss all claims against

Emily Taylor.

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)).

/s/ Elizabeth A. Preston Deavers______

DATED: August 2, 2021 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE