Barrow v. Dayton Living Word

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SAMUEL BARROW,

Plaintiff, Case No. 3:22-cv-227

vs.

DAYTON LIVING WORD, et al., District Judge Michael J. Newman,

Magistrate Judge Peter B. Silvain, Jr.

Defendants.

______________________________________________________________________________

ORDER: (1) DISMISSING WITH PREJUDICE PLAINTIFF’S 42 U.S.C. § 1981 CLAIMS

PURSUANT TO 28 U.S.C. § 1915(e)(2); (2) DISMISSING WITHOUT PREJUDICE

PLAINTIFF’S REMAINING STATE-LAW CLAIMS FOR LACK OF SUPPLEMENTAL

JURISDICTION; (3) DENYING AS MOOT PLAINTIFF’S MOTION TO TRANSFER

(Doc. No. 5); (4) DENYING A CERTIFICATE OF APPEALABILITY; (5) CERTIFYING

THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND FINDING THAT

IN FORMA PAUPERIS STATUS SHOULD BE DENIED ON APPEAL; AND (6)

TERMINATING THE CASE ON THE DOCKET

_____________________________________________________________________________

This civil case is before the Court for a sua sponte review—pursuant to 28 U.S.C.

§ 1915(e)(2)—of pro se Plaintiff Samuel Barrow’s complaint.1 Doc. No. 4. Sua sponte review is

warranted because the Court previously granted Plaintiff’s motion for leave to proceed in forma

pauperis. Doc. No. 1. Sua sponte review occurs before issuance of process “so as to spare

prospective defendants the inconvenience and expense of answering . . . [frivolous, malicious, or

repetitive] complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989) (“[A] litigant whose filing

fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic

1 In conducting an initial review under § 1915, the Court accepts a pro se plaintiff’s allegations as true and

“construe[s] filings by pro se litigants liberally.” Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006)

(citing Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005)). However, while pro se pleadings are

“liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), pro se plaintiffs must still satisfy basic pleading

requirements. See Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010).

incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”). Plaintiff names the

following Defendants: (1) Dayton Living Word Ministries (“Dayton Living Word”); (2) Jackie

Murray and Pat Murray (collectively, “the Murrays”); (3) Steven Justice, Esq.; and (4) the Law

Offices of Dungan & LeFevre (“Dungan & LeFevre”). Doc. No. 4 at PageID 32–33. He raises 28

U.S.C. § 1981 claims and state-law tort claims. Id. at PageID 34–35.

Although Plaintiff previously litigated these same claims with the assistance of counsel in

lawsuits filed in state and federal court—resulting in dismissal of both lawsuits—he now seeks to

relitigate them pro se. See Barrow v. Living Word Church, No. 3:15-cv-341, 2016 WL 5080416,

at *9 (S.D. Ohio Sept. 16, 2016); Samuel Barrow v. Living Word Dayton, No. 2017 CV 02301

(Montgomery Cnty. Ct. Com. Pl. July 29, 2022). Plaintiff did not appeal those dismissals, and he

now adds attorney Steven Justice and the law firm Dungan & LeFevre as Defendants to the present

complaint. Doc. No. 4 at PageID 34–35. Plaintiff also moved to have this case transferred to

Judge Walter H. Rice. Doc. No. 5.

I.

In conducting a § 1915(e)(2) sua sponte review, a complaint should be dismissed as

frivolous if it lacks an arguable basis in law or fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992);

Neitzke, 490 U.S. at 325. A complaint sets forth no arguable factual basis where the allegations

are “fantastic or delusional.” Neitzke, 490 U.S. at 328; see Lawler v. Marshall, 898 F.2d 1196,

1199 (6th Cir. 1990) (“Examples of claims lacking rational facts are prisoner petitions asserting

that Robin Hood and his Merry Men deprived prisoners of their access to mail or that a genie

granted a warden’s wish to deny prisoners any access to legal texts.”); cf. Ashcroft v. Iqbal, 556

U.S. 662, 696 (2009) (Souter, J., dissenting) (noting that courts need not accept as true “allegations

that are sufficiently fantastic to deny reality as we know it: claims about little green men, or the

plaintiff’s recent trip to Pluto, or experiences in time travel”). A complaint presents no arguable

legal basis by advancing “indisputably meritless” legal theories, i.e., when the defendant is

immune from suit or when the plaintiff claims a violation of a legal interest that clearly does not

exist. Neitzke, 490 U.S. at 327; see Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000). Yet, at

this early stage of the case, Plaintiff’s non-delusional factual allegations are accepted as true and

his pro se complaint is liberally construed in his favor. See Waskul v. Washtenaw Cnty. Cmty.

Mental Health, 979 F.3d 426, 440 (6th Cir. 2020).

Courts may also dismiss a complaint sua sponte for failure to state a claim upon which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at

678 (citation omitted). A claim is plausible where “plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

A plausible complaint raises “more than a sheer possibility that a defendant has acted unlawfully.”

Id.

II.

Plaintiff’s complaint raises no more than a “sheer possibility” that Defendants have “acted

unlawfully” under 42 U.S.C. § 1981. Id. The Court reviews “claims of alleged race discrimination

brought under § 1981 under the same standards as claims of race discrimination brought under

Title VII.” Watkins v. BLM Cos., LLC, --- F. Supp. 3d ---, No. 2:22-cv-390, 2022 WL 17414969,

at *8 (S.D. Ohio Dec. 5, 2022) (citing Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 302 (6th

Cir. 2016)); see also, e.g., Johnson v. Univ. of Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir. 2000).

Plaintiff’s complaint “must allege sufficient factual content from which a court, informed by its

judicial experience and common sense, could draw the reasonable inference that [Defendants]

discriminate[d] against [Plaintiff] with respect to [his] compensation, terms, conditions, or

privileges of employment, because of [his] race . . . .” Keys v. Humana, Inc., 684 F.3d 605, 610

(6th Cir. 2012) (citations and internal quotation marks omitted). Here, Plaintiff makes no

allegation “that would allow this Court to infer that discrimination based on race . . . was a factor

in Plaintiff’s failure to obtain employment . . . .” Santifer v. Ann Arbor Pub. Sch. Dist., No. 18-

cv-11446, 2018 WL 6649988, at *3 (E.D. Mich. Dec. 19, 2018); see also, e.g., Johnson v. United

Airlines, Inc., No. 20-10210, 2021 WL 1112707, at *4–5 (E.D. Mich. Feb. 8, 2021) (dismissing

racial discrimination claims where the pro se plaintiff merely pleaded that she was “treated

differently and negatively by Defendant . . . based upon her race”). Moreover, Plaintiff’s § 1981

claims are barred for the following, additional reasons: (1) res judicata because he lost on the

merits in his federal lawsuit raising identical claims against Defendants and their privies, see, e.g.,

Vore v. McCluskey, No. 3:21-cv-215, 2022 WL 3446345, at *3–4 (S.D. Ohio Aug. 17, 2022); and

(2) failure to adhere to Fed. R. Civ. P. 8(a) because, after liberally construing his complaint in his

favor, the Court cannot identify his employment relationship with Defendants or whether he was

a member of a class protected by § 1981. See, e.g., Williams v. W. Union Co., No. 3:06-1213,

2007 WL 1849963, at *1–2 (M.D. Tenn. June 25, 2007). Thus, his § 1981 claims are meritless

and shall be dismissed with prejudice.

“When all federal claims are dismissed before trial, the balance of considerations usually

will point to dismissing the state[-]law claims, or remanding them to state court if the action was

removed.” See Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010) (citations omitted).

Plaintiff’s federal claims fail to advance beyond initial review, so the balance of considerations

counsel against exercising supplemental jurisdiction over his remaining state-law claims. See, e.g.,

Donaldson v. City of Dayton Ohio Police Dep’t, No. 3:22-cv-368, 2023 WL 2925124, at *6 (S.D.

Ohio Apr. 13, 2023), report & recommendation adopted, 2023 WL 3205208, at *1 (S.D. Ohio

May 2, 2023). Accordingly, the Court declines to exercise supplemental jurisdiction over

Plaintiff’s state-law claims.

Because the above leads to dismissal of Plaintiff’s complaint, his motion to transfer is

moot. Doc. No. 5.

III.

Accordingly, Plaintiff’s 42 U.S.C. § 1981 claims are DISMISSED WITH PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2). Doc. No. 4. Plaintiff’s remaining state-law claims are

DISMISSED WITHOUT PREJUDICE for a lack of supplemental jurisdiction. See 28 U.S.C.

§ 1367(c)(3). Plaintiff’s motion to transfer (Doc. No. 5) is DENIED AS MOOT. The Court

hereby CERTIFIES, under 28 U.S.C. § 1915(a)(3), that an appeal in this case would be

objectively frivolous and not taken in good faith. Consequently, Plaintiff should be denied leave

to proceed in forma pauperis on appeal. This case is TERMINATED on the docket.

IT IS SO ORDERED.

August 29, 2023 s/Michael J. Newman

Hon. Michael J. Newman

United States District Judge