Washington v. Community Services Real Estate, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JAMES E. WASHINGTON,

Plaintiff, : Case No. 3-21-cv-268

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

COMMUNITY SERVICES REAL

ESTATE, LLC., et al.,1

:

Defendants.

REPORT AND RECOMMENDATION

This civil action, brought pro se by Plaintiff James E. Washington under The Klu Klux

Klan Act of 1871, is before the Court on the Motion of Defendant Community Services Real

Estate, LLC, to Dismiss the Complaint as to it under Fed.R.Civ.P. 12(b)(6) for failure to state a

claim upon which relief can be granted (ECF No. 3).

As an action filed pro se prior to February 1, 2022, the case was referred to United States

Magistrate Judge Peter B. Silvain, Jr., under Amended General Order Day 22-01. The reference

was transferred to the undersigned on March 7, 2022, to help balance the Magistrate Judge

workload in the District (ECF No. 5). A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is a

dispositive motion on which an assigned Magistrate Judge must provide a report and

recommendation. Such motions are expressly referred in the referenced General Order.

1 This Defendant is listed in the Complaint as “Community Savers Real Estate Services, LLC.”

In the Complaint Plaintiff avers that subject matter jurisdiction is based on the case’s

arising under federal law (28 U.S.C. § 1331) and particularly the Civil Rights Act of 1871, also

known as the Ku Klux Klan Act (ECF No. 2, PageID 24). Defendant avers that the two sections

of that Act that provide for private rights of action are now codified at 42 U.S.C. §§ 1983 and

1985. Because Plaintiff does not specify one or the other of these, the Court must analyze the

Complaint under both.

General Standard for Rule 12(b)(6)

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been re-stated by the Supreme

Court as follows:

Factual allegations must be enough to raise a right to relief above

the speculative level, see 5 C. Wright & A. Miller, Federal Practice

and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading

must contain something more ... than ... a statement of facts that

merely creates a suspicion [of] a legally cognizable right of action”),

on the assumption that all the allegations in the complaint are true

(even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002);

Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d

338 (1989)(“ Rule 12(b)(6) does not countenance ... dismissals

based on a judge's disbelief of a complaint's factual allegations”);

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90

(1974) (a well-pleaded complaint may proceed even if it appears

“that a recovery is very remote and unlikely”).

Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).

Two working principles underlie our decision in Twombly. First, the

tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice. Id., at 555, 127 S. Ct. 1955,

167 L. Ed. 2d 929 (Although for the purposes of a motion to dismiss

we must take all of the factual allegations in the complaint as true,

we "are not bound to accept as true a legal conclusion couched as a

factual allegation" (internal quotation marks omitted)). Rule 8 marks

a notable and generous departure from the hyper-technical, code-

pleading regime of a prior era, but it does not unlock the doors of

discovery for a plaintiff armed with nothing more than conclusions.

Second, only a complaint that states a plausible claim for relief

survives a motion to dismiss. Id., at 556, 127 S. Ct. 1955, 167 L. Ed.

2d 929. Determining whether a complaint states a plausible claim

for relief will, as the Court of Appeals observed, be a context-

specific task that requires the reviewing court to draw on its judicial

experience and common sense. 490 F.3d at 157-158. But where the

well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged -- but it

has not "show[n]" -- "that the pleader is entitled to relief." Fed. Rule

Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to

dismiss can choose to begin by identifying pleadings that, because

they are no more than conclusions, are not entitled to the assumption

of truth. While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations. When

there are well-pleaded factual allegations, a court should assume

their veracity and then determine whether they plausibly give rise to

an entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lambert v. Hartman, 517 F.3d 433, 439 (6th

Cir. 2008), citing League of United Latin Am. Citizens. v. Bredesen, 500 F.3d 523, 527 (6th Cir.

2007)(stating allegations in a complaint “must do more than create speculative or suspicion of a

legally cognizable cause of action; they must show entitlement to relief”); see further Delay v.

Rosenthal Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009), Tam Travel, Inc. v. Delta

Airlines, Inc. (In re Travel Agent Comm’n Antitrust Litig.), 583 F.3d 896, 903 (6th Cir. 2009), New

Albany Tractor v. Louisville Tractor, 650 F.3d 1046 (6th Cir. 2011) (holding a plaintiff is not

entitled to discovery to obtain the necessary plausible facts to plead).

Under Iqbal, a civil complaint will only survive a motion to dismiss if it “contain[s]

sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. ...

The test for dismissal under Fed. R. Civ. P. 12(b)(6) is a stringent

one. "[A] complaint should not be dismissed for failure to state a

claim on which relief can be granted unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 811, 113 S. Ct. 2891, 125 L. Ed. 2d 612

(1993)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,

2 L. Ed. 2d 80 (1957)). In addition, for purposes of the motion to

dismiss, the complaint must be construed in the light most favorable

to the plaintiff and its allegations taken as true. Scheuer v. Rhodes,

416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a … complaint must contain either

direct or inferential allegations respecting all the material elements to sustain a recovery under

some viable legal theory.” Columbia Natural Resources, Inc. v. Tatum, 58 F. 3d 1101 (6th Cir.

1995), cert. denied, 516 U.S. 1158, 116 S. Ct. 1041, 134 L. Ed. 2d 189 (1996). The Court “need

not accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried

Chicken, 829 F. 2d 10, 12 (6th Cir. 1987). Put another way, bare assertions of legal conclusions are

not sufficient. Lillard v. Shelby County Bd. of Educ., 76 F. 3d 716, 726 (6th Cir. 1996). It is only

well-pleaded facts which are construed liberally in favor of the party opposing the motion to

dismiss. Id..; see also Wright & Miller, supra, §1357.

Factual allegations must be enough to raise a right to relief above

the speculative level. Bell Atlantic Corp. v. Twombly, 127 S.Ct.

1955, 1965, 167 L. Ed. 2d 929 (2007), citing 5 C. Wright & A.

Miller, Federal Practice and Procedure § 1216, p. 235-236 (3d ed.

2004). They must do something more than merely create a suspicion

of a legally cognizable right. Id.. Finally, a plaintiff must provide

more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action is not enough. Id.. at 1964-65 (citing

Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d

209 (1986)).

Gex v. Toys “R” Us, 2007 U.S. Dist. LEXIS 73495, *3-*5(S.D. Ohio, Oct. 2, 2007)(Rose, J.)

42 U.S.C. § 1983

42 U.S.C. § 1983, R.S. § 1979, was adopted as part of the Act of April 20, 1871, and reads,

as amended:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress , except

that in any action brought against a judicial officer, injunctive relief

shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this section,

any Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the District of

Columbia.

The statute creates a cause of action sounding essentially in tort on behalf of any person deprived

of a federal constitutional right by someone acting under color of state law. City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School

District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978); Monroe v. Pape,

365 U.S. 167 (1961). The purpose of § 1983 is to deter state actors from using the badge of their

authority to deprive individuals of their federally guaranteed rights and to provide relief to victims

if such deterrence fails. Wyatt v. Cole, 504 U.S. 158 (1992). In order to be granted relief, a

plaintiff must establish that the defendant deprived him of a right secured by the U.S. Constitution

and the laws of the United States and that the deprivation occurred under color of state law. See

West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981); Flagg Brothers

Inc. v. Brooks, 436 U.S. 149, 155 (1978).

Plaintiff’s Complaint does not state a cause of action arising under 42 U.S.C. § 1983. He

does not claim directly that either of the Defendants was acting under color of state law, nor does

the Complaint make such an averment inferentially. It does not satisfy the state action requirement

under § 1983 that some of the Defendant’s actions resulted in deeds which had to be recorded with

the County Recorder. See Shelly v. Kraemer, 334 U.S. 1, 13 (1948)(the “[Fourteenth] Amendment

erects no shield against merely private conduct, however discriminatory or wrongful.”).

Insofar as the Complaint purports to state a claim for relief under § 1983, it is insufficient

and should be dismissed without prejudice for failure to state a claim upon which relief can be

granted.

42 U.S.C. § 1985

42 U.S.C. § 1985 (3), Depriving persons of rights or privileges, provides:

If two or more persons in any State or Territory conspire or go in

disguise on the highway or on the premises of another, for the

purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; or for the purpose of

preventing or hindering the constituted authorities of any State or

Territory from giving or securing to all persons within such State or

Territory the equal protection of the laws; or if two or more persons

conspire to prevent by force, intimidation, or threat, any citizen who

is lawfully entitled to vote, from giving his support or advocacy in a

legal manner, toward or in favor of the election of any lawfully

qualified person as an elector for President or Vice President, or as

a Member of Congress of the United States; or to injure any citizen

in person or property on account of such support or advocacy; in any

case of conspiracy set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act in furtherance of

the object of such conspiracy, whereby another is injured in his

person or property, or deprived of having and exercising any right

or privilege of a citizen of the United States, the party so injured or

deprived may have an action for the recovery of damages

occasioned by such injury or deprivation, against any one or more

of the conspirators.

To prevail on a § 1985(3) claim, one must prove "'(1) a conspiracy; (2) for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal protection of

the laws, or of equal privileges or immunities of the laws; (3) an act in furtherance of the

conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right

or privilege of a citizen of the United States.'" Radvansky v. City of Olmsted Falls, 395 F.3d 291,

314 (6th Cir. 2005), quoting Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2001) (quoting United

Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983)); Bass v. Robinson, 167 F.3d

1041, 1050 (6th Cir. 1999).

To be actionable under 42 U.S.C. § 1985, a conspiracy must be based on some racial "or

perhaps otherwise class-based, invidiously discriminatory animus." Bray v. Alexandria Women's

Health Clinic, 506 U.S. 263 (1993); Griffin v. Breckenridge, 403 U.S. 88 (1971); Macko v. Bryon,

641 F.2d 447 (6th Cir. 1981). A class protected by § 1985(3) must possess the characteristics of a

discrete and insular minority, such as race, national origin, or gender. Haverstick Enterprises v.

Financial Federal Credit, 32 F.3d 989 (6th Cir. 1994), citing Hicks v. Resolution Trust Corp., 970

F.2d 378, 382 (7th Cir. 1992).

Defendant alleges the Compliant fails to meet this standard because:

There are two obvious issues with Plaintiff’s proposed Complaint.

First, Plaintiff’s allegations regarding a conspiracy are vague and

conclusory. Its unclear what exactly the conspiracy is, who is in

involved, how it occurs, and what harm results. Further, Plaintiff in

no way shape or form explains how Defendants alleged actions

constitute a deprivation of equal protection of the laws. Plaintiff

does not allege a specific harm at all, much less a harm that deprives

him of equal protection. Under Section 1985, Plaintiff must not just

allege some injury, but specifically a violation of Plaintiff’s rights

under equal protection. Plaintiff does not allege any equal protection

violation.

(Motion, ECF No. 3, PageID 37).

For purposes of a motion to dismiss, the complaint must be construed in the light most

favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232 (1974);

Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton & Co., 899 F.2d 485

(6th Cir. 1990). Plaintiff is proceeding pro se in this case and pro se litigants are entitled to a liberal

construction of their pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270

F.3d 292, 295 (6th Cir. 2001).

Liberally construed the Complaint alleges that the Defendants have conspired to obtain

title to real estate situated in west Dayton by forging the signatures of purported sellers of such

real estate on quitclaim deeds. Certainly the Court may take judicial notice under Fed. R. Evid.

201 that west Dayton and particularly Madden Hills and zipcode 45417 are historically African-

American neighborhoods. The allegation that Defendants have on at least one occasion used a

forged quitclaim deed to effect the object of the conspiracy satisfies the overt act element of the

standard.

A substantial object of the Framers of the Fourteenth Amendment was to ensure that

African-Americans would enjoy the same civil rights as white citizens, including the right to own

real property. See Eric Foner, THE SECOND FOUNDING: HOW THE CIVIL WAR AND

RECONSTRUCTION REMADE THE CONSTITUTION (2017). The Complaint avers the Defendants

have specifically targeted African-Americans, including Plaintiff, and have engaged in acts to

interfere with their equal rights to own property.

The Magistrate Judge concludes Plaintiff has adequately pleaded a claim for relief under

42 U.S.C. § 1985 and recommends that, as to that claim, the Motion to Dismiss be denied.

Conclusion

The Motion to Dismiss should be granted as to Plaintiffs claims under 42 U.S.C. § 1983

and denied as to his claims under 42 U.S.C. § 1985.

March 7, 2022.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such

objections shall specify the portions of the Report objected to and shall be accompanied by a

memorandum of law in support of the objections. A party may respond to another party’s

objections within fourteen days after being served with a copy thereof. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. #