Jones v. Gilbert

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

VIRGIL B. JONES, : Case No. 2:22-cv-3574

:

Plaintiff, :

: District Judge James L. Graham

vs. :

Magistrate Judge Elizabeth P. Deavers

:

ERIC GILBERT, :

REPORT AND

:

RECOMMENDATION

Defendant. :

:

Plaintiff, a prisoner at the Marion Correctional Institution, has filed a pro se civil rights

complaint in this Court against defendant Eric Gilbert. 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 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

Plaintiff brings this action against defendant Eric Gilbert, a postmaster with the United

States Postal Service in Columbus, Ohio. (Doc. 1 at PageID 1). Plaintiff alleges that on April 4,

2022 he attempted to mail a letter to Scott J. Drexel at the Office of Disciplinary Counsel, but the

letter was returned to him, marked “Return to Sender, Not Deliverable as Addressed, Unable to

Forward.” (Id. at PageID 1-2). Plaintiff claims that failure to mail the letter as addressed amounted

to breach of duty, breach of promise, and breach of contract. (Id. at PageID 4). He further claims

that defendant’s alleged failure to deliver his letter caused him anxiety, pain, suffering, and

emotional distress.

As relief, plaintiff seeks monetary damages.2 (Id.).

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 at PageID 1). 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.

2 In the body of the complaint, plaintiff asserts that he is entitled to release from prison. (See Doc.

1 at PageID 3). However, to the extent that plaintiff seeks release from custody, the proper

mechanism for petitioner to challenge his present physical custody is a petition for a writ of habeas

corpus. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“This Court has held that a prisoner in state

custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’”)

(quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). Accordingly, to the extent that plaintiff

seeks relief in the form of his release from custody, his sole remedy is a petition for a writ of habeas

corpus after exhausting his state court remedies.

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.

Even if the complaint is liberally construed as asserting a violation of plaintiff’s civil rights,

the complaint nevertheless fails to state a claim for relief. Under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that a

plaintiff could bring a cause of action against a federal agent “acting under color of his authority”

for damages due to the agent’s unconstitutional actions. To state a claim for relief under Bivens,

plaintiff must allege facts showing defendants acted under color of federal authority and personally

deprived plaintiff of his constitutional rights. Mueller v. Gallina, 137 F. App’x. 847, 850 (6th Cir.

2005) (citing Browning v. Clinton, 292 F.3d 235, 250 (D.C. Cir. 2002); Gossmeyer v. McDonald,

128 F.3d 481, 495 (7th Cir. 1997)).

To the extent that plaintiff may contend that defendant Gilbert violated his First

Amendment right to access the courts, his claim should be dismissed. As an initial matter, plaintiff

has not alleged that defendant Gilbert had any personal involvement in the return of his mail and

seeks to hold him responsible for the actions of his staff. (See Doc. 1 at PageID 2). However,

“[g]overnment officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676 (“Because vicarious

liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official’s own individual actions, has violated the Constitution.”);

Kim v. Fed. Way Post Office Postmaster, 356 F. App’x 1, 2 (9th Cir. 2009) (“Respondeat superior

is inapplicable in a Bivens action.”).

In any event, plaintiff’s allegations are insufficient to state an actionable First Amendment

claim. In order to do so, plaintiff must plead and demonstrate that the challenged conduct has

hindered or is presently hindering, his efforts to pursue a nonfrivolous legal claim. Lewis v. Casey,

518 U.S. 343, 351-53 (1996); see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).

“Examples of actual prejudice to pending or contemplated litigation include having a case

dismissed, being unable to file a complaint, and missing a court-imposed deadline.” Harbin-Bey

v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005). In addition, when bringing a denial of access to the

courts claim, “the underlying cause of action, whether anticipated or lost, is an element that must

be described in the complaint, just as much as allegations must describe the official acts frustrating

the litigation.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). “[T]he predicate claim (must)

be described well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of

the underlying claim is more than hope.” Id. In other words, “only prisoners with non-frivolous

underlying claims can have standing to litigate an access-to-courts action.” Hadix v. Johnson, 182

F.3d 400, 405-406 (6th Cir. 1999) (citing Lewis, 518 U.S. at 353 & n. 3).

Plaintiff fails to allege any facts showing that he suffered an actual injury in any

nonfrivolous legal proceeding as a result of his letter being returned to him on one occasion.

Plaintiff has not alleged that he is unable to file a grievance with the Office of Disciplinary

Counsel; nor has he alleged any facts to suggest that defendant’s conduct impacted a nonfrivolous

cause of action. Without such allegations, plaintiff fails to state a claim for relief for a denial of

access to the courts under the First Amendment. See, e.g., Barrow v. Moore, Case No. C-06-383,

2006 WL 3317047, at *3-4 (S.D. Tex. Nov. 13, 2006) (dismissing First Amendment access to the

courts claim after finding that the plaintiff failed to allege that any individual federal postal worker

violated his right to access the courts or demonstrate that his having pieces of mail returned to him

prejudiced his position as a litigant in any non-frivolous proceeding). Accordingly, plaintiff has

failed to state an actionable First Amendment claim.

Finally, insofar as plaintiff is alleging claims under Ohio law, the Court should decline to

exercise supplemental jurisdiction over those claims. Harper v. AutoAlliance Int'l, Inc., 392 F.3d

195, 210 (6th Cir. 2004) (although the exercise of supplemental jurisdiction under 28 U.S.C. §

1367 is a matter of discretion, when a court dismisses all federal claims before trial, it generally

should dismiss the state law claims as well).

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).

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).

Date: October 17, 2022 s/ Elizabeth A. Preston Deavers_______

ELIZABETH A. PRESTON DEAVERS

United States Magistrate Judge