Allen v. Becerra

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN DALE ALLEN, et al.,

Plaintiffs,

v. Civil Action 2:22-cv-20

Chief Judge Algenon L. Marbley

Magistrate Judge Chelsey M. Vascura

XAVIER BECERRA,

in his official capacity as Secretary of

the U.S. Dept. of Health and Human

Services,

Defendant.

ORDER and REPORT AND RECOMMENDATION

Plaintiffs, John Dale Allen and Roger Carlton Johnson, Ohio residents proceeding

without the assistance of counsel, have submitted requests to file a civil action in forma pauperis.

(ECF Nos. 1–2.) The Court GRANTS Plaintiffs’ request to proceed in forma pauperis. 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 also before the Court for the initial screen of Plaintiffs’

Complaint as required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to

recommend dismissal of Plaintiffs’ 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 Plaintiffs’ claims

pursuant to 28 U.S.C. § 1915(e)(2).

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) 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; [or]

(ii) fails to state a claim on which relief may be granted . . . .

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).

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 Cty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 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. ANALYSIS

Plaintiffs’ Complaint states that they each submitted written claims for $5 million in

monetary damages to Defendant the United States Department of Health and Human Services

(“HHS”) pursuant to the Federal Tort Claims Act (“FTCA”) on May 31, 2020, but that HHS did

not respond within six months as required. (Compl. 1–2, ECF No. 2-1.) Plaintiffs assert that

HHS’s failure to respond means that HHS “is in default” and entitles them to the $5 million in

damages they each seek. Plaintiffs’ claims lack merit.

The FTCA claim forms attached to Plaintiffs’ Complaint state they have suffered

“personal injury” in the form of:

1. Health damage — loss of treatment, care, access to care;

2. Loss of right to congregate in a church;

3. Loss of right to peaceably assemble;

4. Loss of liberty; and

5. Loss of access to courts.

(Claim Forms, ECF Nos. 2-2, 2-3.) Plaintiffs also attach statements to their claim forms alleging

that various United States officials conspired to deprive United States citizens of their rights in

connection with the COVID-19 pandemic. (Id.) Plaintiffs make multiple allegations against Dr.

Anthony Fauci, Director of the National institute of Allergy and Infectious Diseases, the Center

for Disease Control, the Bill and Melinda Gates Foundation, and the U.S. Food and Drug

Administration that they conspired to unnecessarily induce the populace to wear face masks and

engage in social distancing based on unreliable data from foreign governments. (Id.) The only

allegation against HHS, the sole Defendant in this action, is that “on January 31, 2020, HHS

Secretary Alex M. Azar II, relying on information provided by foreign sources, declared a Public

Health Emergency for the United States.” (Id.)

Plaintiffs have failed to plead any facts on which the Court could rely to conclude that

they are entitled to compensation under the FTCA. Under the FTCA,

the government may be liable “for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment, . . . if a

private person would be liable to the claimant in accordance with the law of the

place where the act or omission occurred.”

Premo v. United States, 599 F.3d 540, 544 (6th Cir. 2010) (quoting 28 U.S.C. § 1346(b)(1)).

Plaintiffs expressly disclaimed any damages for injury or loss of property or death on their claim

forms. (ECF Nos. 2-2, 2-3, stating “not applicable” in the relevant sections.) Instead, Plaintiffs

rely on damages due to personal injury for their claims. (Id., seeking “$5,000,000.00” as the

“amount of claim” for “personal injury.”) Yet Plaintiffs’ allegations as to the personal injuries

they suffered are threadbare and conclusory. Of the five categories of harm they allegedly

suffered (health damage, loss of right to congregate in a church, loss of right to peaceably

assemble, loss of liberty, and loss of access to courts), only their alleged loss of healthcare

access, resulting in damage to their health, could fit within the definition of “personal injury.”

And Plaintiffs’ mere assertion of “[h]ealth damage — loss of treatment, care, access to care,”

without any supporting factual allegations as to the type or extent of health damage suffered by

Plaintiffs, is insufficient to plausibly allege personal injury. Nor does Plaintiffs’ Complaint

contain any allegations that would allow the Court to conclude that HHS’s declaration of a

public health emergency—the only allegation directed to the sole Defendant in this action—

resulted in injury of any kind to Plaintiffs.1

In sum, the undersigned concludes that Plaintiffs’ Complaint provides insufficient factual

content or context from which the Court could reasonably infer that HHS caused any injury to

Plaintiffs that is compensable under the FTCA. Thus, Plaintiffs have failed to satisfy the basic

federal pleading requirements set forth in Rule 8(a). Twombly, 550 U.S. at 555. For these

reasons, it is RECOMMENDED that Plaintiffs’ Complaint be DISMISSED pursuant to 28

U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.

1 Nor is HHS “in default” for failing to respond to Plaintiffs’ May 31, 2020 claim forms within

six months. The FTCA provides that, if a federal agency fails to respond to a written claim

under the FTCA within six months, the claimant may treat the failure as “a final denial of the

claim.” 28 U.S.C. § 2675(a). Thus, HHS effectively denied Plaintiffs’ claims by failing to

respond.

III. DISPOSITION

Plaintiffs’ Motions for Leave to Proceed in forma pauperis (ECF Nos. 1–2)

are GRANTED. For the foregoing reasons, it is RECOMMENDED that Plaintiffs’ claims be

DISMISSED pursuant to 28 U.S.C. § 1915(e)(2).

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).

The parties are specifically advised that 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

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE