Hammonds v. Davis

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

MARK HAMMONDS, : Case No. 1:22-cv-564

:

Plaintiff, :

: District Judge Douglas R. Cole

vs. :

Magistrate Judge Karen L. Litkovitz

:

DESIREE DAVIS, :

REPORT AND

:

RECOMMENDATION

Defendant. :

:

Plaintiff, a prisoner at the Correctional Reception Center, has filed a pro se civil rights

complaint in this Court against defendant Desiree Davis. By separate Order plaintiff has been

granted leave to proceed in forma pauperis. This matter is before the Court for a sua sponte

review of the complaint, as amended, to determine whether the complaint, or any portion of it,

should be dismissed because it 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. See

Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. §

1915A(b).

Screening of Plaintiff’s Complaint

A. Legal Standard

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

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). 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

1 Formerly 28 U.S.C. § 1915(d).

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, 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 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)).

B. Allegations in the Complaint

In the complaint, plaintiff makes the following factual allegations:

I am suing Desiree Davis for lying on me and her having her kids lie on me she sat

in that courtroom on the stand and right or outright lied on me when she know I did

none of what he and her kids said I did.

(Doc. 1-1, Complaint at PageID 15). As relief, plaintiff seeks monetary damages. (Id. at PageID

16).

C. Analysis

Plaintiff’s allegations are insufficient to state a claim with an arguable basis in law over

which this federal Court has subject matter jurisdiction.

To the extent plaintiff seeks to invoke the diversity jurisdiction of the Court under 28

U.S.C. § 1332(a), the complaint reveals such jurisdiction is lacking. In order for diversity

jurisdiction pursuant to § 1332(a) to lie, the citizenship of the plaintiff must be “diverse from the

citizenship of each defendant” thereby ensuring “complete diversity.” Caterpillar Inc. v. Lewis,

519 U.S. 61, 68 (1996) (citing State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531 (1967));

see also Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North

American Res. Corp., 809 F. Supp. 546, 551 (S.D. Ohio 1992). In this case, both plaintiff and

defendant are citizens of Ohio. (See Doc. 1-1, Complaint at PageID 10, 14). The complaint does

not allege that the citizenship of plaintiff and defendant are diverse. 28 U.S.C. § 1332(1).

Therefore, this Court lacks subject matter jurisdiction on the basis of diversity of citizenship over

any state law claims plaintiff may be alleging.

In addition, the Court is without federal question jurisdiction over the complaint. District

courts also have original federal question jurisdiction over cases “arising under the Constitution,

laws, or treaties of the United States.” 28 U.S.C. § 1331. In order to invoke the Court’s federal

question jurisdiction pursuant to 28 U.S.C. § 1331, plaintiff must allege facts showing the cause

of action involves an issue of federal law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63

(1987). The undersigned is unable to discern from the facts alleged in the complaint any federal

statutory or constitutional provision that applies to give rise to an actionable claim for relief.

Finally, plaintiff has failed to state a claim under 42 U.S.C. § 1983. To state a § 1983

claim, plaintiff must allege (1) the deprivation of a right secured by the Constitution or laws of the

United States, and (2) the deprivation was caused by a person acting under color of state law. See

Hines v. Langhenry, 462 F. App’x 500, 503 (6th Cir. 2011) (citing Boykin v. Van Buren Twp., 479

F.3d 444, 451 (6th Cir. 2007); Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). The complaint

includes no factual allegations suggesting that defendant Davis, the sole named defendant, acted

under color of state law. “Providing information to the police, responding to questions about a

crime, and offering witness testimony at a criminal trial does not expose a private individual to

liability for actions taken ‘under color of law.’” Moldowan v. City of Warren, 578 F.3d 351, 399

(6th Cir. 2009) (citations omitted). See also Briscoe v. LaHue,460 U.S. 325, 329-30 (1983). Thus,

to the extent plaintiff alleges that defendant Davis provided false or misleading testimony at

plaintiff's criminal trial, that action in itself fails to show Davis acted under color of state law for

purposes of a viable § 1983 claim.

IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff's complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b).

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith

and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114

F.3d 601 (6th Cir. 1997).

Date: 9/30/2022 SG x uth ond

Karen L. LitkoVitz

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 this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either

side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,

and shall be accompanied by a memorandum of law in support of the objections. A party shall

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy

of those objections. Failure to make objections in accordance with this procedure may forfeit

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).