The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GILBERT PARKER, Case No. 1:21-cv-721
Plaintiff,
Black, J.
vs. Bowman, M.J.
DEPARTMENT OF JUSTICE
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, a resident of Cincinnati brings this action against the Department of Justice.
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 appears to arise out of his civil rights case against the New
York Division of Parole. Plaintiff claims that he was unlawfully detained on a parole warrant
in 2003. Thereafter, in 2004, Plaintiff contends he filed a pro se civil rights 1983 case against
the New York State Division of Parole, et al, in U.S. District Court for the Southern District
of New York. He claims that for thirteen years the New York State Attorney General’s office
has denied him justice. It appears that in 2018 his appeals were dismissed. (Doc. 1, pp. 31-
73). For relief, Plaintiff is seeking “$50,000 for the continuing pain and suffering of mental
anguish and emotional distress as well as a full investigation into the crimes committed by
the attorney general lawyer and the right to file my appeal with the court of appeals second
circuit”. (Doc. 1).
Upon careful review, the undersigned finds that Plaintiff’s complaint fails to state a
claim upon which relief may be granted in this federal court. There is no indication from the
complaint that this matter would be properly venued in this Court. 28 U.S.C. § 1391(b)
provides that civil suits may be brought only in the judicial district where (1) any defendant
resides, if all defendants reside in the same State; (2) a substantial part of the events or
omissions giving rise to the claim occurred; or (3) any defendant may be found, if there is
no district in which the claim may otherwise be brought. In this case, Plaintiff states he is a
resident of Ohio and the defendants appear to be residents of New York. It also appears
that the events giving rise to plaintiff's claims occurred in New York, and not in any county
located in the Southern District of Ohio. Thus, the Southern District of Ohio is not the proper
venue under section 1391(b). Plaintiff’s claims under section 1983 are also time-barred. See
Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.1989) (Any claim for damages under §
1983 must be filed within two years of the date that the claim accrues, which is usually the
date on which the allegedly unconstitutional acts occurred).
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
GILBERT PARKER, Case No. 1:21-cv-721
Plaintiff,
Black, J.
vs. Bowman, M.J.
DEPARTMENT OF JUSTICE
Defendant.
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).