McConnaughy v. The Republic of the Philippines

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK ALLEN MCCONAUGHY,

Plaintiff,

Case No. 2:21-cv-3930

vs. Judge Michael H. Watson

Magistrate Judge Elizabeth P. Deavers

THE REPUBLIC OF THE

PHILIPPINES,

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 Republic of the Philippines.” (ECF No. 1-1, at 1.)

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

The people, and through their elected government, of the Republic of the

Philippines has intentionally and with malice, abducted my daughter Kenzy Kay

McConnaughy since October of 2010 with no resolution to this abduction as of this

date! The facts of this case would encompass 15 years worth of information and

require me spending weeks preparing a full and complete explanation along with

many hours by a judge reading said explanation if not days. I humbly request that

i am appointed a attorney and given the power to call witness and produce evidence

so i may present a true and complete set of facts before this Honorable Court Of

this case, i can state with complete confidence that it involves the abduction of a

child that is a citizen of the United States of America, attempted murder of my

person, the kidnapping of my person at gunpoint, twice being threatened by a

deadly weapon, assault of my person, illegal detention by police, assault by police,

threatening by police, attorney’s violating laws, a judge or two violating the law,

multiple human rights violations, theft, many acts of discrimination based on race

and nationality, others being physically harmed for assisting me. There is much

more! I humbly request that this motion moves forward for the sake of a 13 year

old little girl named Kenzy Kay McConnaughy whom is currently abducted and

American.

(Id. at 3.) Plaintiff states that he brings this action pursuant to 28 U.S.C. § 1605(5) and seeks

$50,000,000.00 for the “state sponsored abduction of my daughter since October 7, 2010!” (Id.

at 2, 4.)

The Complaint filed in this case is frivolous and subject to summary dismissal. Plaintiff

has not provided any facts that would support a finding that his claim against the sovereign

nation of the Republic of the Philippine Islands falls within one of the limited exceptions under

the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605, to the general rule of sovereign

immunity. Foreign states are generally immune from the jurisdiction of federal and state courts.

Strable v. Republic of Philippine Islands, No. CIV A 605-2927-RBH, 2007 WL 858829, at *3

(D.S.C. Mar. 16, 2007). That is, because the Philippines is a foreign sovereign, this court has

subject matter jurisdiction over the dispute only if the Philippines is “not entitled to immunity

[under any of the the FSIA exceptions].” See 28 U.S.C. § 1330(a). Plaintiff appears to rely on

the exception set forth in 28 U.S.C. § 1605(a)(5), which provides:

A foreign state shall not be immune from the jurisdiction of courts of the United

States or of the States in any case—

…

(5) not otherwise encompassed in paragraph (2) above, in which money damages are

sought against a foreign state for personal injury or death, or damage to or loss of

property, occurring in the United States and caused by the tortious act or omission of

that foreign state or of any official or employee of that foreign state while acting

within the scope of his office or employment; except this paragraph shall not apply

to—

(A) any claim based upon the exercise or performance or the failure to exercise or

perform a discretionary function regardless of whether the discretion be abused,

or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights;

28 U.S.C.A. § 1605 (West).

Pursuant to this exception, a plaintiff can establish subject matter jurisdiction over a

foreign sovereign under the tortious act exception if there has been a tortious act (1) “occurring

in the United States”; (2) “caused by [a] tortious act or omission”; (3) where the alleged acts or

omissions were those of a “foreign state or of any official or employee of that foreign state”; and

(4) those acts or omissions were done within the scope of tortfeasor's employment. See 28 U.S.C.

§ 1605(a)(5). O'Bryan v. Holy See, 556 F.3d 361, 380–81 (6th Cir. 2009)

Initially, Plaintiff does not allege that any activity at issue in his Complaint occurred in

the United States such that the tortious act exception could in any way be found applicable here.

Accordingly, the Republic of the Philippines is entitled to immunity from any claims made in

this case and the Court lacks subject matter jurisdiction over the Complaint. Strable, 2007 WL

858829, at *4. (citing Persinger v. Islamic Republic of Iran, 729 F.2d 835, 839–40

(D.C.Cir.1984); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1524–25

(D.C.Cir.1984); English v. Thorne, 676 F.Supp. 761, 763–74 (S.D.Miss.1987)).

Beyond this, even if read more broadly, Plaintiff’s Complaint does not contain any

additional factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 570). Plaintiff’s Complaint

consists of nothing more than a series of conclusory and non-specific factual allegations and

legal conclusions relating to actions taken by a series of unidentified individuals. There is no

question that “[f]actual allegations must be enough to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Twombly, 550 U.S. at 555 (2007). Plaintiff’s claim simply falls short in this regard.

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

The Republic of the Philippines.

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