The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN DALE ALLEN, et al.,
Plaintiffs,
v. Civil Action 2:22-cv-0020
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.
OPINION & ORDER
This case is before the Court on the Magistrate Judge’s Report and Recommendation (ECF
No. 4) and Plaintiffs’ Objections thereto (ECF No. 6). For the following reasons, the Court
OVERRULES Plaintiffs’ Objections and AFFIRMS the Report and Recommendation.
I. BACKGROUND
Plaintiffs, Ohio residents proceeding pro se, brought this action against the Secretary of
Health and Human Services (“HHS”), alleging they had suffered damages and violations of their
constitutional rights as a result of HHS’s failure to respond to Plaintiffs’ written claim for damages
under the Federal Tort Claims Act (“FTCA”). As summarized by the Magistrate Judge, Plaintiffs’
FTCA claims relate generally to public health measures taken as a result of the COVID-19
pandemic:
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 [I]nstitute 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.)
(ECF No. 4 at 4.)
The Magistrate Judge first granted Plaintiffs’ motions for leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a). (ECF No. 4 at 1.) The Magistrate Judge then
recommended Plaintiffs’ Complaint be dismissed because Plaintiffs failed to plead any facts on
which the Court could conclude that they are entitled to compensation under the FTCA. Namely,
Plaintiffs provided only threadbare and conclusory allegations that did not plausibly suggest any
“personal injury” as relevant to the FTCA, and their allegations did not allow the Court to conclude
that HHS’s declaration of a public health emergency resulted in injury of any kind to Plaintiffs.
(Id. at 4–5.) In short, the Magistrate Judge concluded that Plaintiffs had failed to assert any
cognizable claims upon which relief could be granted.
Plaintiffs timely filed objections to the Report and Recommendation, contending that the
Magistrate Judge erroneously addressed their claims only under the FTCA, without addressing
their claims for constitutional violations under 42 U.S.C. § 1983. (ECF No. 6). Accordingly, the
Court will review Plaintiffs’ § 1983 claims de novo. See Fed. R. Civ. P. 72(b)(3). Plaintiffs did not
state specific objections to the dismissal of their FTCA claims, as opposed to the screening process
generally. (Id.).
II. STANDARD OF REVIEW
When a plaintiff proceeds in forma pauperis, “the court shall dismiss” their complaint or
any portion of it that: “(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2). While detailed factual allegations are not necessary at the pleading stage,
mere “labels and conclusions” are insufficient to state a proper claim. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 545 (2007). Pro se complaints are to be construed liberally, but “basic pleading
essentials” still are required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Thus, to survive
screening, a complaint must contain sufficient facts which, if accepted as true, would plausibly
state a claim upon which relief may be granted.
III. ANALYSIS
Here, Plaintiffs’ Complaint fails to allege facts sufficient to support a constitutional claim
under 42 U.S.C. § 1983. In order to plead a cause of action under § 1983, a plaintiff must plead
two elements: “(1) deprivation of a right secured by the Constitution or laws of the United States
(2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of
Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460,
463 (6th Cir. 2006)). Plaintiffs’ Complaint satisfies neither element.
First, Plaintiffs’ FTCA claim forms contain only threadbare and conclusory assertions that
that they have been deprived of their First Amendment rights to congregate in a church, peaceably
assemble, and access the courts, and of their Fourteenth Amendment rights to liberty. These are
precisely the mere “labels and conclusions” that the Supreme Court has held insufficient to satisfy
the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See
Twombly, 550 U.S. at 555. Plaintiffs’ objection that these forms provide “sufficient factual
content” (ECF No. 6 at 1) is rejected.
Second, Plaintiffs’ claims under § 1983 fail because Plaintiffs do not allege any facts to
suggest that the Secretary of HHS was “acting under color of state law,” rather than in his capacity
as a federal officer. As the court stated in Strickland ex rel. Strickland v. Shalala: “To establish a
claim under § 1983, a plaintiff must show that he was deprived of rights guaranteed under the
United States Constitution or federal law by a person acting ‘under color of state law.’ Because
federal officials typically act under color of federal law, they are rarely subject to liability
under § 1983.” 123 F.3d 863, 866 (6th Cir. 1997) (internal citation omitted). Notwithstanding
Plaintiffs’ objections, they have failed to state a cause of action under § 1983.!
Accordingly, screening in this matter was proper. Because Plaintiffs’ Complaint is brought
in forma pauperis and “fails to state a claim upon which relief may be granted,” it must be
dismissed under 28 U.S.C. § 1915(e)(2).
IV. CONCLUSION
The Court finds that Plaintiffs’ claims under both the FTCA and § 1983 claims are unviable
as a matter of law and therefore are dismissed per 28 U.S.C. § 1915(e)(2)(B). Plaintiffs’ Objections
(ECF No. 6) are OVERRULED, and the Magistrate Judge’s Report and Recommendation (ECF
No. 4) is AFFIRMED. This case is DISMISSED.
IT IS SO ORDERED.
ee aa Halk
CHIEF UNITED STATES DISTRICT JUDGE
DATED: February 8, 2022
' The Supreme Court decision cited in Plaintiffs’ Objections, Tanzin v. Tanvir, concerns the Religious Freedom
Restoration Act (“RFRA”). It references § 1983 in the context of interpreting similar statutory language in RFRA. 141
S. Ct. 486, 490-91 (2020). Tanzin was not a § 1983 case, and it therefore is irrelevant to the claims at issue here.