Bell v. City Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WAKEITHA M. BELL, Case No. 1:23-cv-168

Plaintiff, Cole, J.

Bowman, M.J.

v.

CITY OF CINCINNATI,

Defendant.

REPORT AND RECOMMENDATION

By separate Order issued this date, Plaintiff Wakeitha M. Bell has been granted

leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The complaint itself is

now before the Court for a sua sponte review 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 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, the

undersigned recommends that the complaint be dismissed.

I. General Screening Authority

Congress has authorized federal courts to dismiss an in forma pauperis complaint

if satisfied that the action is frivolous or malicious. Denton v. Hernandez, 504 U.S. 25, 31

(1992); see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous

when the plaintiff cannot make any claim with a rational or arguable basis in fact or

law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898

F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the

defendant is immune from suit or when plaintiff claims a violation of a legal interest which

clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis

when the allegations are delusional or rise to the level of the irrational or “wholly

incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not accept

as true factual allegations that are “fantastic or delusional” in reviewing a complaint for

frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S.

at 328).

Congress has also authorized the sua sponte dismissal of complaints which fail to

state a claim upon which relief may be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii).

Although a plaintiff's pro se complaint must be “liberally construed” and “held to less

stringent standards than formal pleadings drafted by lawyers,” the complaint must “give

the defendant fair notice of what the ... claim is and the grounds upon which it

rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal citation and quotation omitted)). The complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

570); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)(“dismissal standard

articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept

all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion

couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual

allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A pleading

that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557.

II. Analysis

In this case1, the complaint identifies the City of Cincinnati as the lone Defendant.

Plaintiff alleges that Defendant has violated her civil rights “under color of State law.”

(Doc. 1-1 at 2, PageID 5). A handwritten “Statement of Claim” on the standard form used

by pro se litigants states in relevant part:

I have been deprived of my rights all over the City. I have been deprived at

hospitals, police stations and shelters. I have also been deprived in CMHA

housing. There’s a triangle of deprivation being committed by the whole City

of Cincinnati. I filed a complaint against an officer named Mercado/Deloran

Mercado it was filed under 22109. The complaint helped me prove that April

2021 was my 1st time ever seeing her. I have proof of medical [illegible] and

fraud and because of her and the fraud around the city pertaining to me my

complaint was unfairly unrightfully erased and then she retired and I would

still like to sue er but this lawsuit is for general violations of my rights

including obstruction [sic].

1 The undersigned takes judicial notice that the same Plaintiff recently filed a second complaint in this Court,

see Case No. 1:23-cv-177. Without prejudging the validity of any future lawsuits that Plaintiff may seek to

file, the Court advises Plaintiff that litigants who repeatedly file lawsuits that are dismissed as legally

frivolous may find themselves subject to pre-filing restrictions. See generally, Stewart v. Fleet Financial,

229 F.3d 1154, 2000 WL 1176881 (6th Cir., August 10, 2000) (citing Feathers v. Chevron U.S.A., 141 F.3d

264, 269 (6th Cir.1998)); Filipas v. Lemons, 835 F.2d 1145, 1146 (6th Cir.1987) (recognizing that a federal

court “has the authority to issue an injunctive order to prevent prolific and vexatious litigants from filing

pleadings without first meeting pre-filing restrictions.”).

(Doc. 1-1 at 3, PageID 6). As relief, Plaintiff’s original complaint seeks “to be treated fairly

in the hospital as well as compensated for lack of treatment and pain and suffering.” (Id.

at 4, PageID 7).

On March 28, 2023, Plaintiff filed a motion to amend her initial pleading “to change

the jurisdiction to US gov. defendant, bc all parties listed in my complaint are government

agencies.” (Doc. 3 at 1). Notwithstanding her motion, no defendant is identified other than

the City of Cincinnati. Plaintiff states in the same motion that her “demand for 9,999,000

is incorrect,” and requests to change that amount to “100,000 possibly less once I round

expenses of injuries and lack of treatment.” (Id.) Last, she states that she “would like to

be referred to a Judge not a magistrate.” (Id.)2

On March 30, 2023, Plaintiff filed an additional motion seeking to amend her

pleading. (Doc. 4 at 1). In her most recent filing, Plaintiff states that she seeks the

appointment of counsel as well as trial before a jury. (Id.) She explains that she is

“currently looking for an attorney.” She also states that she wishes “to make sure the

jurisdiction was Federal,” and seeks “to change amount asking for to 20 million,” based

upon injuries that “got me sexually exploited, raped, followed and lied on.” (Id.)

After careful review, the undersigned concludes that Plaintiff’s complaint fails to

state a claim upon which relief may be granted in this federal court, even after considering

both the March 28 and March 30 proposed “amendments.” On the whole, the complaint

contains insufficient factual detail from which this Court can discern any conceivable or

plausible claim against the sole identified defendant, the City of Cincinnati, or against any

2The undersigned is a United States Magistrate Judge. See generally 28 U.S.C. § 636. Pursuant to general

practice, pro se civil cases are routinely assigned to a magistrate judge for initial review. As stated in the

Notice below, any timely objections filed by Plaintiff will be reviewed by the presiding district judge.

other potential defendant. In addition, although Plaintiff has filed suit for unspecified

violations of her civil rights, “[i]t is firmly established that a municipality ... cannot be held

liable under § 1983 for an injury inflicted solely by its employees or agents.” Gregory v.

Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell v. Dep't. of Social

Serv., 436 U.S. 658, at 694 (1978)). To state a claim for relief against

the City of Cincinnati for Plaintiff's alleged injuries, the complaint must allege facts

showing that whatever misconduct gave rise to plaintiff's injuries was the result of a policy,

statement, regulation, decision or custom promulgated by the City. Bright v. Gallia Cnty.,

Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing Shamaeizadeh v. Cunigan, 338 F.3d 535,

556 (6th Cir. 2003)); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Doe v.

Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996).

“The ‘official policy’ requirement [of Monell] was intended to distinguish acts of the

municipality from acts of employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality is actually

responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in

original). “[P]laintiff must adequately plead (1) that a violation of a federal right took place,

(2) that the defendants acted under color of state law, and (3) that a municipality's policy

or custom caused that violation to happen.” Bright, 753 F.3d at 660 (citing Lambert v.

Hartman, 517 F.3d 433, 439 (6th Cir. 2008)). See also Polk County v. Dodson, 454 U.S.

312 (1981) (municipal policy must be “moving force” behind constitutional deprivation).

Here, Plaintiff's complaint fails to allege any specific facts taken by anyone at all, and fails

to identify any individual City employee other than the vaguely identified (and apparently

retired) Officer Mercado. In short, the complaint fails to allege any particular policy,

custom, or practice of the City of Cincinnati that caused a violation of Plaintiff’s civil rights,

and therefore fails to state a claim against the Defendant under 42 U.S.C. § 1983.

Because the complaint fails to state a claim upon which relief may be granted, it should

be dismissed under 28 U.S.C. §1915(e)(2)(B).

III. Conclusion and Recommendation

Plaintiff’s allegations lack sufficient factual detail to state any plausible claim

against the Defendant. Accordingly, IT IS RECOMMENDED THAT:

1. This case be DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2) for

failure to state a claim on which relief may be granted;

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

reasons an appeal of any Order adopting this Report and Recommendation

would not be taken in good faith and therefore should deny Plaintiff leave to

appeal in forma pauperis.

s/Stephanie K. Bowman____

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WAKEITHA M. BELL, Case No. 1:23-cv-168

Plaintiff, Cole, J.

Bowman, M.J.

v.

CITY OF CINCINNATI,

Defendant.

NOTICE

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 of

the filing date of this R&R. 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

(14) 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).