George v. Gordon

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN GEORGE,

Case No. 2:22-cv-1981

Plaintiff, Judge Edmund A. Sargus, Jr.

Magistrate Judge Kimberly A. Jolson

v.

CHRISTINA D. GORDON, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

This matter is before the Court on the April 26, 2022 Order to Show Cause. (Doc. 2). For

the reasons that follow, Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 1) is

GRANTED and the Undersigned RECOMMENDS Plaintiff’s Complaint (Doc. 1-1) be

DISMISSED for failure to prosecute pursuant to Federal Rule of Civil Procedure 41 and for failure

to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

I. BACKGROUND

Plaintiff filed the instant action on April 19, 2022, along with a Motion for Leave to

Proceed in forma pauperis. (Doc. 1). The allegations in Plaintiff’s complaint appear to concern

fraud and identity theft. (Doc. 1-1 at 3). Yet, Plaintiff failed to indicate, or even suggest, his suit’s

basis for federal jurisdiction. (See id.). Nor did he make any specific factual allegations related

to the purported claims and Defendants. (See id.). Plaintiff also submitted summons forms for a

Defendant not listed in his Complaint, but not for the Complaint’s named Defendant, Christina D.

Gordon. (Doc. 1-3).

Accordingly, on April 26, 2022, the Court issued an Order to Show Cause. (Doc. 2). The

Order informed Plaintiff about the Court’s obligation to dismiss an action proceeding in forma

pauperis when the action “is frivolous, malicious, fails to state a claim on which relief may be

granted, or seeks monetary relief against a defendant who is immune from such relief.” (Id. at 1)

(citing 28 U.S.C. § 1915(e)(2)). The Court noted that Plaintiff’s Complaint failed to demonstrate

a cognizable claim for relief and ordered Plaintiff to make a showing which included “a more

specific basis for federal jurisdiction and more specific allegations against the Defendants.” (Id.).

It also instructed Plaintiff to cure the issue with the summons forms. (Id. at 2). He was given until

May 9, 2022 to comply with both aspects of the Order. (Id. at 1–2).

Yet, to date, Plaintiff has failed to submit a revised Complaint or summons forms, and has

not otherwise responded to the Order to Show Cause.

II. DISCUSSION

There are two bases on which the Undersigned recommends dismissal. First, Plaintiff has

failed to prosecute this action pursuant to Rule 41. And second, Plaintiff has failed to state a claim

pursuant to 28 U.S.C. § 1915(e)(2).

A. Rule 41

The Court’s inherent authority to dismiss an action because of a party’s failure to prosecute

is expressly recognized in Rule 41(b), which authorizes involuntary dismissal for failure to

prosecute or to comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); see also

Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the

inherent power to dismiss a case sua sponte for failure to prosecute” as recognized in Link v.

Wabash R.R. Co., 370 U.S. 626, 629–32 (1962)). “This measure is available to the district court

as a tool to effect management of its docket and avoidance of unnecessary burdens on the tax-

supported courts and opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999).

The Sixth Circuit directs the district courts to consider the following four factors in

deciding whether to dismiss an action for failure to prosecute under Rule 41(b):

(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether

the adversary was prejudiced by the dismissed party’s conduct; (3) whether the

dismissed party was warned that failure to cooperate could lead to dismissal; and

(4) whether less drastic sanctions were imposed or considered before dismissal was

ordered.

Schafer v. City of Defiance Police Dep’t., 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176

F.3d at 363). “‘Although typically none of the factors is outcome dispositive, . . . a case is properly

dismissed by the district court where there is a clear record of delay or contumacious conduct.’”

Schafer, 529 F.3d at 737 (quoting Knoll, 176 F.3d at 363).

On balance, the factors set forth in Schafer support dismissal. First, despite being afforded

over a month to respond to the Court’s Order to Show Cause, Plaintiff has failed to do so. And

because the Order to Show Cause centered on material necessary for the proper initiation of his

case, he has brought the case to an effective halt. Clearly, Plaintiff has “a reckless disregard for

the effect of [his] conduct on [the Court’s] proceedings[,]” and thus acted with willfulness, bad

faith, or fault. Schafer, 529 F.3d at 737 (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th

Cir. 2005)).

While no Defendant has been served––so there is little risk of prejudice––the remaining

factors also weigh in favor of dismissal. As described above, the Order to Show Cause made clear

that, without a further showing of jurisdiction and factual allegations from Plaintiff, the Complaint

did not state a cognizable claim for relief and would have to be dismissed. Further, the

Undersigned considered less drastic sanctions than dismissal but concludes that any such effort

would be futile given Plaintiff’s failure to participate in these proceedings. Grange Mut. Cas. Co.

v, Mack, 270 F. App’x 372, 377 (noting that a court must simply “consider” lesser sanctions but is

not required to actually issue such sanctions before granting a dismissal for failure to prosecute).

In view of the foregoing, the Undersigned concludes Plaintiff has abandoned this action.

Although this Court has a “favored practice of reaching a disposition on the merits,” the Court’s

“need to manage its docket [and] the interest in expeditious resolution of litigation . . .” outweigh

allowing this case to linger. Little v. Yeutter, 984 F.2d 160, 162 (6th Cir. 1993).

B. 28 U.S.C. 1915(e)(2)

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, 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) 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;

(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),

a complaint must contain a “short and plain statement” of both “the grounds for the court’s

jurisdiction,” and “the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P.

8(a)(1)–(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, “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. Further, the Court holds pro se

complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’” Garrett v.

Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 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)).

First, the Court notes that Plaintiff made no substantive attempt to assert the grounds for

federal jurisdiction. Rather, in his Complaint, Plaintiff indicated that the jurisdictional basis for

his suit was “Other federal status giving the court subject matter jurisdiction[,]” without providing

any related statute or attempting to explain the purported basis for jurisdiction. (Doc. 1-1 at 2).

Second, Plaintiff failed to plead sufficient factual matter to state a claim that is plausible

on its face. The entirety of Plaintiff’s statement of claim is a list of alleged misconduct: “Total

identify theift [sic], fraud, stolen property, stolen social security account, credit destruction, 4

fraudlent [sic], forged preditory [sic] loans forgery.” (Id. at 3). Plaintiff brings his claim against

Christina D. Gordon, “her parents, brother, daughter[,]” and “her entire network of scammers[.]”

(Id. at 2). Ultimately, however, the Court cannot draw the reasonable inference that any of these

Defendants are liable for the misconduct alleged, because Plaintiff makes no factual assertions

about any Defendant’s conduct. See Iqbal, 556 U.S. at 678. Even affording Plaintiff the leniency

due to pro se complainants, the Court can do no more than guess at the nature of the claim asserted.

See Frengler, 482 F. App’x at 976–77. His Complaint, therefore, does not state a claim upon

which relief can be granted.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc.

1) is GRANTED and the Undersigned RECOMMENDS Plaintiff’s Complaint (Doc. 1-1) be

DISMISSED for failure to prosecute pursuant to Federal Rule of Civil Procedure 41 and for failure

to state a claim 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 District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District 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).

IT IS SO ORDERED.

Date: June 6, 2022 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE