Opinion

Sexton v. United States

Court
District Court, S.D. Ohio
Filed
Sep 26, 2022
Cited by
0 cases
Authority
More cited than 28.3%

“Even if a non-prisoner pays the filing fee and/or is represented by counsel, the complaint must be screened under §1915(e)(2).”

How later courts described this case

  • “Even if a non-prisoner pays the filing fee and/or is represented by counsel, the complaint must be screened under §1915(e)(2).”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD SEXTON,

Plaintiff,

Civil Action 2:22-cv-3241

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Kimberly A. Jolson

UNITED STATES, et al.,

Defendants.

ORDER AND

REPORT AND RECOMMENDATION

Pro se Plaintiff filed a Motion to Proceed in forma pauperis (Doc. 1), in connection with

his Complaint (Doc. 1-1). When evaluating a motion to proceed without prepayment of fees, the

Court also conducts an initial screen of the Complaint pursuant to 28 U.S.C. § 1915(e). To enable

this review, the Court must be able to discern whether Plaintiff has stated a viable claim. Because

the Court was unable to perform that review, Plaintiff was ordered to file an amended complaint

on or before September 20, 2022. (Doc. 2). That deadline has passed, and Plaintiff failed to

comply. Consequently, although Plaintiff’s Motion to Proceed in forma pauperis (Doc. 1) is

GRANTED, it is RECOMMENDED that this case be DISMISSED.

I. Motion For Leave to Proceed in forma pauperis

Upon review, Plaintiff has satisfied the standard to proceed without the payment of fees in

this matter, and his Motion for Leave to Proceed in forma pauperis (Doc. 1) is GRANTED.

II. Dismissal Under 28 U.S.C. § 1915(e)

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss any portion of

the Complaint that is frivolous, malicious, fails to state a claim upon which relief can 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) (“Even if a

non-prisoner pays the filing fee and/or is represented by counsel, the complaint must be screened

under §1915(e)(2).”). While true that pro se complaints are to be construed liberally, Haines v.

Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required, Wells v. Brown,

891 F.2d 591, 594 (6th Cir. 1989). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires

a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled

to relief.”

Previously, the Court concluded that Plaintiff’s complaint was too vague for the Court to

discern what federal claims he was attempting to bring. (Doc. 2). Plaintiff names five Defendants

in this action, including the Torts Law Group of the United States Department of Veterans Affairs

(“VA”) and Janssen Pharmaceuticals. His allegations seem to arise, in part, from harm suffered at

several VA facilities. But his Complaint does not state specific allegations for each Defendant nor

make clear what violation of law he is asserting based on the alleged conduct. Further, Plaintiff

cites several criminal statutes, “which do not provide a private right of action” for private citizens

like Plaintiff. See Kelly v. City of New Philadelphia, No. 5:11CV474, 2011 WL 3705151, at *2–

3 (N.D. Ohio Aug. 22, 2011).

Under the Federal Rules of Civil Procedure, a complaint must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction;

(2) a short and plain statement of the claim showing that the pleader is entitled to

relief; and

(3) a demand for the relief sought, which may include relief in the alternative or

different types of relief.

Fed. R. Civ. P. 8(a)(1)–(3). All claims must be set forth in “numbered paragraphs, each limited as

far as practicable to a single set of circumstances,” Fed. R. Civ. P. 10(b), and “[e]ach allegation

must be simple, concise, and direct,” Fed. R. Civ. P. 8(d)(1).

The Court provided this guidance to Plaintiff and sent him a copy of the Court’s pro se

guide. (Doc. 2). The Court also gave Plaintiff time to amend his complaint. (Id.). He did not.

As it stands, Plaintiff’s complaint must be dismissed for failure to state a claim. See 28 U.S.C.

§1915(e)(2). Indeed, his Complaint is incomprehensible and his claims frivolous.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Proceed in forma pauperis is

GRANTED, but it is RECOMMENDED that this case be DISMISSED.

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, 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 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: September 26, 2022 s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.