Blassingame v. Governor of the State of Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DERRICK BLASSINGAME, Case No. 1:21-cv-375

Plaintiff,

McFarland, J.

vs. Bowman, M.J.

GOVERNOR OF THE STATE

OF OHIO, et al,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff brings this pro se action against Ohio Governor Mike DeWine, Lt.

Governor Jon Husted, Ohio Department of Job and Family Services Interim Director Matt

Damschroder, and United States Department of Labor Secretary, Martin J. Walsh. By

separate Order issued this date, plaintiff has been granted leave to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte

review of plaintiff’s complaint to determine whether the complaint, or any portion of it,

should be dismissed because it 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)(B).

In enacting the original in forma pauperis statute, 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.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized

federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action

is frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be

dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v.

Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis

when the defendant is immune from suit or when plaintiff claims a violation of a legal

interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable

factual basis when the allegations are delusional or rise to the level of the irrational or

“wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need

not accept as true factual allegations that are fantastic or delusional in reviewing a

complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting

Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to

state a claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same

token, however, the complaint “must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also

Hill, 630 F.3d at 470–71 (“dismissal standard articulated in Iqbal and Twombly governs

dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept

all well-pleaded factual allegations as true but need not “accept as true a legal conclusion

couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual

allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading

that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint

must “give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Erickson, 551 U.S. at 93 (citations omitted).

Here, Plaintiff’s complaint asserts that the defendants harmed him, “by denying

him a congressionally mandated benefit by deliberately ending federally assisted

pandemic unemployment insurance programs.” (Doc. 1 at 2). The relevant programs at

issue are: H.R. 748: Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No.

116-136, H.R. 748, 116th Cong. (2020) (CARES Act); as amended by the American

Rescue Plan Act of 2021, Pub. L. No. 117-2, H.R. 1319, 117th Cong. (ARPA). Plaintiff

claims defendants, in terminating Ohio’s participation in the federally assisted benefits

program, discriminated against him and others in violation of 42 U.S.C.A. § 2000d and

the Workforce Investment Act Of 1998, Pub. L. § 188, (1998) (WIA) (repealed). (Doc. 1

at 2). While plaintiff cites the WIA, it was repealed in 2014 by the Workforce Innovation

and Opportunity Act (WIOA), which included a nearly identical nondiscrimination

provision. See 29 U.S.C.A. § 3248 (West). For relief, Plaintiff asks the court for declaratory

judgement invalidating Governor Mike DeWine’s order to end Ohio’s participation in the

extensions of the CARES Act’s federally assisted unemployment provisions, as amended

by ARPA, and declaratory judgment invalidating Governor Mike DeWine’s presumed

authority to end the state of Ohio’s participation in the federally assisted aid package.

(Doc. 1 at 3).

Further, plaintiff seeks injunctive relief from this court compelling Governor DeWine

and the State of Ohio to continue providing unemployment benefits under ARPA. (Doc. 1

at 3–4). Plaintiff also seeks an injunction ordering Governor DeWine, Interim Director

Damschroder, and Secretary of Labor of the United States Department of Labor, Martin

J. Walsh, to pay the remaining benefits under the program to all eligible Ohioans,

including himself. (Doc. 3–4). Plaintiff also requests injunctions compelling Governor

DeWine to provide a “clearer and concise explanation” for why benefits were terminated

and an injunction compelling Secretary Walsh to provide “clearer and concise

explanation” for how he intends to issue further unemployment assistance. (Doc. 1 at 4).

Plaintiff’s complaint is subject to dismissal. First, plaintiff’s complaint fails to state

a claim for which relief can be granted under 28 U.S.C. § 1915 (e)(2)(B). Under the

language of the CARES Act, as amended by ARPA, none of the named defendants in

Ohio is obligated by the statute to participate in the unemployment compensation program

offered by the CARES Act, nor is Secretary Walsh bound to compel participation after

proper notice is given by the State regarding the termination of their participation under

the act. Under Sec. 2104 H.R. 748–38, “[a]ny state which is party to an agreement under

this section may upon providing 30 days’ written notice to the Secretary, terminate such

an agreement.” The language of the statute indicates participation in the agreement is

voluntary on behalf of the State and participation in the program is not mandated upon

proper notice of termination of their agreement under the CARES Act.

Furthermore, courts have also held that there is no private right to action under the

CARES Act, at least in relation to Title I of the Act. Cf. Profiles, Inc. v. Bank of Am. Corp.,

453 F. Supp. 3d 742, 748–52 (D. Md. 2020), appeal dismissed (deciding against plaintiffs

who were challenging lenders adding eligibility requirements to Payroll Protection

Program (PPP) loans on grounds there was no private right to action). Thus, because the

CARES Act, as amended by the ARPA, allows states to terminate their agreement to

provide federally assisted unemployment benefits and because there is no private right

to action under the CARES Act, plaintiff’s complaint should be dismissed.

With respect to Plaintiff’s claims under 42 U.S.C. § 2000d or 29 U.S.C. § 3248,

plaintiff has failed to allege any facts that would establish that a claim for relief against

defendants. Under 42 U.S.C. § 2000d, only intentional discrimination is prohibited.

Alexander v. Sandoval 532 U.S. 275, 280 (2001). Here, the discrimination alleged by

plaintiff is based on the disparate impact of the decision to end participation in the

federally assisted unemployment benefits. No facts are pleaded which show intentional

discrimination by the State of Ohio in its decision to end participation in the program.

As to the defendant’s named in the complaint who are Executive Officials of the

State of Ohio: Governor Mike DeWine, Lt. Governor Jon Husted, and Ohio Department

of Job and Family Services Interim Director, Matthew Damschroder. Any form of relief

sought against a State in federal court is barred under the Eleventh Amendment, unless

the State has waived sovereign immunity. See Seminole Tribe of Fla. v. Fla., 517 U.S.

44, 58 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101

(1984)(“[t]he Eleventh Amendment bars a suit against state officials when ‘the state is the

real, substantial party in interest’” (quoting Ford Motor Co. v. Department of Treasury, 323

U.S. 459, 464) (adjustment added). Here, the State of Ohio is the real party in interest

and the State has neither constitutionally nor statutorily waived its Eleventh Amendment

immunity in the federal courts. Thus, plaintiff’s complaint should be dismissed. See Johns

v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline Marie

Nursing Homes, 694 F.2d 449 (6th Cir. 1982).

Accordingly, for these reasons, it is therefore RECOMMENDED this action be

DISMISSED with PREJUDICE for failure to state a claim for relief. It is further

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

foregoing reasons an appeal of any Order adopting this Report and Recommendation

would not be taken in good faith and therefore deny Plaintiff leave to appeal in forma

pauperis.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DERRICK BLASSINGAME Case No. 1:21-cv-375

Plaintiff,

McFarland, J.

vs. Bowman, M.J.

GOVERNOR OF THE STATE

OF OHIO, et al,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).