Johnson v. Young

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT W. JOHNSON,

Plaintiff,

Case No. 2:22-cv-3311

vs. Judge Michael H. Watson

Magistrate Judge Elizabeth P. Deavers

ROBERT J. YOUNG, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Robert W. Johnson, a New York resident proceeding without the assistance of

counsel, brings this action. (ECF No. 1.) This matter is before the Undersigned for an initial

screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to

recommend dismissal of Plaintiff’s 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); see also McGore v. Wrigglesworth,

114 F.3d 601, 608 (6th Cir. 1997).

Having performed the initial screen, for the reasons that follow, it is RECOMMENDED

that the Court DISMISS this action without prejudice and permit him to seek leave to amend.

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)1 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;

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

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

1Formerly 28 U.S.C. § 1915(d).

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 ain 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)).

Further, when the face of the complaint provides no basis for federal jurisdiction, the

Court may dismiss an action as frivolous and for lack of subject matter jurisdiction under both 28

U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3). Williams v. Cincy Urban Apts., No. 1:10-

cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182

F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)).

II.

Plaintiff’s Complaint contains one allegation, in one sentence: that he “was

discriminated against and denied employment” by the twelve named Defendants. (ECF No. 1 at

PAGEID # 4.) Plaintiff seeks $100 million in punitive damages as well as “all other reliefs just

and proper.” (Id. at PAGEID # 5.)

The Undersigned concludes that Plaintiff has failed to assert a claim upon which relief

may be granted in this Court. Even when viewed through the most generous lens, Plaintiff’s

Complaint offers nothing more than a legal conclusion – that Defendants discriminated against

Plaintiff. This is plainly insufficient. Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”)

(quoting Twombly, 550 U.S. at 555)); Gilmore v. Corr. Corp. of Am., 92 F. App'x 188, 190 (6th

Cir. 2004) (“Merely listing names in the caption of the complaint and alleging constitutional

violations in the body of the complaint is not enough to sustain recovery[.]”) (citing Flagg Bros.

v. Brooks, 436 U.S. 149, 155–57 (1978)).

Here, Plaintiff does not set forth any of the relevant factual circumstances underlying the

alleged discrimination, let alone the basis of the alleged discrimination,1leaving the Court

without any information to know whether it has jurisdiction over Plaintiff’s claims,2 whether

Plaintiff’s claims are time-barred, or whether Plaintiff’s claim is even ripe. Accordingly, even

under the liberal construction afforded to pro se complaints, Plaintiff’s Complaint must be

dismissed. Allah v. Smith, No. 2:22-CV-21, 2022 WL 394374, at *4 (S.D. Ohio Feb. 9, 2022)

(“[W]here a person is named as a defendant without an allegation of specific conduct, the

1 In order to show a prima facie case of discrimination under Title VII, Plaintiff must establish

that he was a member of a protected class, he has suffered an adverse employment action, he was

qualified for the position, and he was replaced by a person outside the protected class or was

treated differently than similarly-situated, non-protected employees. Briggs v. Univ. of

Cincinnati, 11 F.4th 498, 508 (6th Cir. 2021).

2 Plaintiff affirmatively indicated that his claims do not arise under 28 U.S.C. § 1343(3), 1331, or

1332(a)(1), but he did not provide any other basis for subject matter jurisdiction. (ECF No. 1 at

PAGEID # 2.)

complaint is subject to dismissal, even under the liberal construction afforded to pro se

complaints.”) (citing Catanzaro v. Harry, 848 F. Supp. 2d 780, 791 (W.D. Mich. 2012)).

That said, given that Plaintiff is proceeding without the assistance of counsel, however, it

is RECOMMENDED that Plaintiff's claim be DISMISSED WITHOUT PREJUDICE. If

Plaintiff believes he could amend his Complaint to assert a proper discrimination claim, it is

RECOMMENDED that he be permitted to move for leave to do so within thirty days of any

Order adopting this Report and Recommendation.

III.

For the reasons set forth above, it is RECOMMENDED that the Complaint in its

entirety be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). It

is FURTHER RECOMMENDED that if Plaintiff believes he could amend his Complaint to

assert a proper discrimination claim, he be permitted to move for leave to file an Amended

Complaint within THIRTY (30) DAYS of any Order adopting this Report and

Recommendation.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report an\d

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

/s/ Elizabeth A. Preston Deavers

DATED: September 20, 2022 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE