Bibbs v. JPAY, L.L.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NATHANIEL BIBBS, et al., : Case No. 2:23-cv-2792

:

Plaintiffs, :

: District Judge Sarah D. Morrison

vs. :

Magistrate Judge Kimberly A. Jolson

:

JPAY, LLC., et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATION

Plaintiffs Nathaniel Bibbs and Ronald Leeks, prisoners at the Allen Correctional

Institution, have filed a pro se civil rights complaint against Defendants JPay L.L.C. and ViaPath

Technologies pursuant to 42 U.S.C. § 1983. Plaintiffs have paid the full filing fee.

The complaint was initially submitted by Steven Abdul-Azziz El Bey, who purported to

sign the complaint as “Amicus Curiae.” (See Docs. 1, 4). El Bey has since submitted a “Certificate

of Lay Advocacy,” and a Motion for an Emergency Temporary Restraining Order, which were not

signed by the Plaintiffs to this action. (See Docs. 6, 7). As the Court has previously noted (See

Doc. 4 at PageID 23–24), an individual my appear in federal court only pro se or through legal

counsel. 28 U.S.C. § 1654. Rule 11 of the Federal Rules of Civil Procedure further requires that

“[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record

in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed

by the party.” Fed. R. Civ. P. 11(a). Pleadings not signed on behalf of a party or licensed attorney

are subject to dismissal. See, e.g., Keyway Leasing Trust v. U.S., No. 1:98-cv-796, 1999 WL

810386, at *2 (W.D. Mich. Aug. 26, 1999); Lawton v. Medevac Mid-America, Inc., 138 F.R.D.

586, 588 (D. Kan. 1991). El Bey does not provide an Ohio Bar number or otherwise appear to be

an attorney licensed to practice law in the State of Ohio.1 Accordingly, El Bey is unable to

represent the named Plaintiffs in this action.

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 Plaintiffs’ Complaint

A. Legal Standard

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 v. Hernandez, 504 U.S. 25, 32 (1992); 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).

1 See The Supreme Court of Ohio Attorney Directory Search, available at

https://www.supremecourt.ohio.gov/AttorneySearch/#/search.

Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim

upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint filed by a pro se

plaintiff must be “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) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)); see also Hill, 630 F.3d at 470–71 (“dismissal standard articulated in Iqbal and

Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and

1915(e)(2)(B)(ii)).

“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 (citing

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. The complaint must “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

B. Allegations

Plaintiffs allege that on or about February of 2013, Defendant JPay L.L.C. entered into

contracts with the Ohio Department of Rehabilitation and Correction (ODRC) to install kiosk

machines in ODRC facilities and sell JPay tablets to inmates. (Doc. 5 at PageID 28). The kiosks

enabled inmates to purchase, download, and sync music, games, photos, e-books, and emails to

the tablets. According to Plaintiffs, the JPay tablets were sold to inmates from 2013 through the

fall of 2022 for $130 to $175, “with the false pretense that inmates would have their tablets for the

life of the tablet as well as the opportunity to purchase and own digital content up to and including

the duration of their incarceration.” (Id. at PageID 29).

Plaintiffs assert that after purchasing a tablet and digital content “under the pretense that

this digital content was being purchased for the use and permanent at will access,” the ODRC

informed inmates that they would no longer be permitted to possess the JPay tablets. (Id.).

According to Plaintiffs, Defendant ViaPath Technologies “would take over the contract with JPAY

and ODRC, and then they would force inmates to relinquish the JPAY tablets along with their

purchased digital content in the inmates possession that they purchased in order to distribute

VIAPATH’s tablets where they themselves own all of the content and the inmates are forced to

rent the content monthly.” (Id.). Plaintiffs indicate that as part of the transition to ViaPath tablets

inmates were given the choice to send their purchased JPay tablet home or to turn it in to designated

staff members for a credit. (See id. at PageID 28). After September 31, 2023, Plaintiffs indicate

that the phased-out JPay tablets would be considered contraband. (Id. at PageID 30).

Although Plaintiffs indicate that they were informed that previously purchased music

would be transferred and downloaded to new tablets, Plaintiffs and others have failed to receive

the content. (Id. at PageID 29). Plaintiffs further contend that not all inmates were able to

download purchased content onto their tablets before the JPay kiosks were removed and none of

the purchased games are being returned to inmates, instead requiring inmates to pay for a game

subscription. (Id. at PageID 29–30, 32). Plaintiffs maintain that they have never consented to

“having their property illegally taken away” from them and were not affirmatively presented with

JPay’s terms of service prior to purchasing a JPay tablet. (Id. at PageID 31).

Based on the above factual allegations, Plaintiffs purport to bring a class action under 42

U.S.C. § 1983. Plaintiffs allege that Defendants violated the Federal Trade Commission Act’s

prohibition of “unfair or deceptive acts or practices in or affecting commerce.” See 15 U.S.C.

§ 45(a). Second, Plaintiffs claim that depravation of their property amounted to an unlawful taking

prohibited by the Fifth Amendment. Finally, Plaintiffs bring a breach of contract claim against

Defendants.

C. Analysis.

The complaint is subject to dismissal at the screening stage. See 28 U.S.C. § 1915(e)(2)(B).

As an initial matter, the complaint should be limited to alleged violations of Plaintiffs’ own

rights. To the extent that Plaintiffs have filed a purported class action, “Federal Rule of Civil

Procedure 23(a)(4) generally does not permit pro se plaintiffs without legal training to serve as

class representatives.” Sanders v. Macauley, No. 22-1502, 2022 WL 16729580, at *5 (6th Cir.

Aug. 10, 2022) (citing Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009)

(holding that pro se litigants are “inadequate class representatives”)). Cf. Dodson v. Wilkinson,

304 F. App’x 434, 438 (6th Cir. 2008). In this case, Plaintiffs have not moved for class certification

or otherwise demonstrated that they would be adequate class representatives.2 See Sanders, 2022

2 With respect to the adequacy of representation, Plaintiffs state they intend to retain counsel

“highly experienced in complex consumer class action litigation, and Plaintiffs intend to

vigorously prosecute this action on behalf of the putative class.” (Doc. 5 at PageID 34). However,

WL 16729580, at *5 (finding that where the plaintiff “offered no basis from the general rule that

pro se plaintiffs are not adequate class representatives, the district court did not abuse its discretion

by denying class certification”). See also White v. Kasich, No. 2:12-cv-1125, 2013 WL 941440,

at *10 (S.D. Ohio Mar. 8, 2013) (Deavers, M.J.) (Report & Recommendation) (explaining that the

reason pro se prisoners are generally prohibited from bringing class actions is because they are

unable to “adequately to represent the interests of the class”), adopted, 2013 WL 1281887 (S.D.

Ohio Mar. 27, 2013) (Smith, J.); Brown v. Collins, No. 2:07-cv-826, 2008 WL 818793, at *2 (S.D.

Ohio Mar. 24, 2008) (Kemp, M.J.; Frost, J.) (citing Palasty v. Hawk, 15 F. App’x 197, 200 (6th

Cir. 2001)) (same); Marcum v. Jones, No. 1:06-cv-108, 2006 WL 543714, at *1 (S.D. Ohio Mar.

3, 2006) (Dlott, J.) (and cases cited therein) (holding that the pro se inmate “may bring his own

claims to federal court without counsel, but not the claims of others”). Therefore the complaint

should be limited to alleged violations of plaintiffs’ own federal rights. Cf. Dodson, 304 F. App’x

at 438. See also Bradbury v. ODRC, Case No. 2:23-cv-2355, 2023 WL 6997143, at *1 (Morrison,

J.; Deavers, M.J.) (S.D. Ohio Oct. 24, 2023) (finding that the plaintiff “cannot bring class action

litigation pro se” in a case with similar factual allegations ).

Plaintiffs’ claims brought under the Federal Trade Commission Act (FTCA) should be

dismissed. As noted above, Plaintiffs assert that Defendants violated § 5 of the FTCA, 15 U.S.C.

§ 45(a), by employing unfair or deceptive acts or practices. (See Doc. 5 at PageID 34–35).

However, “there is no private right of action under the FTC Act.” Drake v. Sometime Spouse,

LLC, 784 F. App’x 602, 605 (10th Cir. Aug. 22, 2019) (citing Am. Airlines v. Christensen, 967

F.2d 410, 414 (10th Cir. 1992)). See also Morales v. Walker Motor Sales, Inc., 162 F. Supp. 2d

Plaintiffs have not retained counsel to date or otherwise demonstrated a basis for the Court to

deviate from the general rule that pro se plaintiffs are not adequate class representatives.

786, 790 (S.D. Ohio Sept. 22, 2022) (“Courts have uniformly held that a private right of action

does not exist under § 5 of the FTCA.”) (collecting cases). Absent a private cause of action,

Plaintiffs’ claims brought under the FTCA should be dismissed for failure to state a claim upon

which relief may be granted. See Edoho-Eket v. Waifair.com, No. 17-6509, 2019 WL 2524366, at

*2–3 (6th Cir. Jan. 23, 2019) (affirming the dismissal of FTCA claim for failure to state a claim

upon which relief may be granted, finding that “Section 5 of the FTCA does not provide a private

right of action”).

Plaintiffs’ claim that Defendants violated the Takings Clause of the Fifth Amendment

should also be dismissed. The Takings Clause, which is applicable to the states through the

Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without

just compensation.” U.S. Const. Amend. V. See Brown v. Legal Found. of Washington, 538 U.S.

216, 231–32 (2003) (“While it confirms the State’s authority to confiscate private property, the

text of the Fifth Amendment imposes two conditions on the exercise of such authority: the taking

must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.”). In this case,

Plaintiffs have not made any allegation plausibly suggesting that their tablets or digital content

were taken for a public use. To the contrary, Plaintiffs allege that the tablets were to be traded in

or sent home due to a change in ODRC policy and service/media provider. Absent any allegation

plausibly suggesting Plaintiffs’ property was taken for a public use, Plaintiffs’ Fifth Amendment

takings claim should be dismissed. See, e.g., Neives v. Allison, Case No. 1:22-cv-1020, 2023 WL

5956981, at *3 (E.D. Cal. Sept. 13, 2023) (finding that plaintiff’s allegation of a takings clause

violation for confiscation of JPay tablets insufficient to state a claim for relief where the plaintiff

did not allege the deprivation was for public use) (Report and Recommendation) (pending);

Peterka v. Dixon, No. 4:21-cv-367, 2023 WL 3402613, at *6 (N.D. Fla. Mar. 17, 2023) (finding

that a shared profit between the Florida Department of Corrections and JPay itself to be insufficient

to show a taking for public use) (Report and Recommendation), adopted, 2023 WL 3124718 (N.D.

Fla. Apr. 27, 2023).

To the extent that Plaintiffs contend that the deprivation of their private property amounted

to a violation of their federal due process rights, this claim should also be dismissed. In order to

state a claim based on the loss of their property, plaintiffs must first “plead . . . that state remedies

for redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983).

See also Hudson v. Palmer, 468 U.S. 517 (1984). “If satisfactory state procedures are provided in

a procedural due process case, then no constitutional deprivation has occurred despite the injury.”

Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587–88 (6th Cir. 2004). Accordingly,

in order to state a procedural due process claim under Section 1983 “the plaintiff must attack the

state’s corrective procedure as well as the substantive wrong.” Meyers v. City of Cincinnati, 934

F.2d 726, 731 (6th Cir. 1991) (quoting Vicory, 721 F.2d at 1066). A plaintiff “may not seek relief

under Section 1983 without first pleading and proving the inadequacy of state or administrative

processes and remedies to redress [his] due process violations.” Jefferson, 360 F.3d at 588.

Plaintiffs have not alleged any facts even remotely indicating that their remedies under

Ohio law to redress the wrong of which they complain are inadequate. Plaintiffs’ complaint fails

to explain why a state tort remedy for conversion would not suffice to address their claims. See

Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). See, e.g., Bradbury v. ODRC, Case No.

2:23-cv-2355, 2023 WL 6997143, at *1 (Morrison, J.; Deavers, M.J.) (S.D. Ohio Oct. 24, 2023)

(dismissing due process claim where JPay tablets were confiscated where plaintiff failed to allege

that Ohio’s post-deprivation tort remedies are inadequate). Therefore, Plaintiffs fail to state a due

process claim that is actionable in this § 1983 proceeding.

Finally, the Court should decline to exercise supplemental jurisdiction over Plaintiffs’

state-law, breach of contract claim. 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). Plaintiffs’ state-law contract claims should be dismissed without

prejudice. Bullock v. City of Covington, 698 F. App’x 305, 307 (6th Cir. 2017) (“Normally, when

a court declines to exercise supplemental jurisdiction, the court dismisses the claims without

prejudice.”).

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B),

with the exception of Plaintiffs’ state-law contract claims which should be DISMISSED without

prejudice.

2. The Motion for an Emergency Temporary Restraining Order (Doc. 7) be DENIED.

3. 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: November 15, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE