Sowell v. United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SALVATORE JULIANO SOWELL, : Case No. 2:23-cv-1683

:

Plaintiff, :

: District Judge Edmund A. Sargus

vs. :

Magistrate Judge Karen L. Litkovitz

:

UNITED STATES :

OF AMERICA, :

:

Defendant. :

ORDER AND REPORT AND RECOMMENDATION

On September 6, 2023, the undersigned issued a Report recommending that plaintiff’s

case be dismissed for lack of prosecution based on his failure to either pay the filing fee or

submit an in forma pauperis application to initiate this action. (Doc. 12).

On October 26, 2023, plaintiff filed a motion for leave to proceed in forma pauperis.

(Doc. 13). In view of plaintiff’s pro se status and in the interest of justice, the undersigned

reconsiders the previous recommendation to dismiss this case for lack of prosecution and vacates

the September 6, 2023 Report and Recommendation. By separate order, the Court has

considered plaintiff’s belated motion and granted him leave to proceed in forma pauperis in this

case.

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

1 Formerly 28 U.S.C. § 1915(d).

2

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

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

3

v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

B. Allegations in the Complaint

Plaintiff’s original complaint (Doc. 1) was not signed, and plaintiff was ordered to submit

a signed complaint if he wished to proceed with a lawsuit. (Doc. 2). Plaintiff then filed a

“Statement of Claim” (Doc. 8), which the Court has construed as plaintiff’s signed complaint.

(Doc. 11).

Plaintiff’s complaint is rambling and difficult to decipher. As best the Court can discern,

plaintiff alleges he was arrested on December 15, 2022 at the Ohio State University James

Wexner Medical Center after receiving emergency room treatment. (Doc. 8 at PAGEID 49).

He alleges that he was approached by Ohio State University Police Officer A. Ward who advised

plaintiff she was responding to a call about someone refusing to leave the emergency room.

Plaintiff states he did not have transportation at that time of the day, and the medical staff had

given him permission to remain at the Center. Plaintiff alleges Officers Bo Elliott and Brian

Graffe told him they did not care if he had permission and that he had to leave. Additional

officers arrived and demanded plaintiff leave immediately. Plaintiff alleges he feared the Ohio

State University Police Department was “trying to kill me for listing them as a defendant in the

civil action number 470 Racketeer Influenced and Corrupt Organizations Act lawsuit that, at that

time, I was in the process of filing.” (Id. at PAGEID 51). Plaintiff states that after a brief

scuffle, he was transported to the Franklin County Corrections Center. He was then threatened

by an unknown officer at the Corrections Center who stated that he knew people in the

courthouse who would use an incorrect Social Security number so plaintiff would never get out

of jail. Plaintiff later learned he had been indicted in two separate cases on charges of assault

and harassment by an inmate. He was released on bond following his court appearance, but

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then subsequently arrested in April 2023 on criminal trespassing charges. While awaiting a

court hearing, an unknown deputy told him he was not going to win his lawsuit “because we

know how to break the law and get away with it.” (Id. at PAGEID 55). He alleges Ms. Shadoe

Marie Reese, the mother of his child, and Ms. Ashley Renee Sowell, his sister, are “both listed as

defendants being held responsible for this civil action number 470 Racketeer Influenced and

Corrupt Organizations Act lawsuit against the United State of America.” (Id. at PAGEID 51).

On the last page of his complaint, plaintiff names the following as defendants: Ms. Shadoe Marie

Reese; Mr. Deante Christopher Parker; Ms. Ashley Renee Sowell; Mr. Brian Grefe; Mr. Bo

Elliott; Ms. Adrienne Ward; The Ohio State University; The Ohio State University Police

Department; the Franklin County Sheriff’s Administration; the Franklin County Municipal

Court; and the Franklin County Court of Common Pleas. (Id. at PAGEID 57). While the

complaint does not set forth the relief plaintiff is seeking, other documents filed by plaintiff

indicate he seeks monetary compensation and criminal charges to be filed against the defendants.

(Doc. 3, Motion for Demanded Compensation Injunction; Doc. 5, Motion for Injunction).

C. Analysis

Plaintiff’s complaint is subject to dismissal at the screening stage. See 28 U.S.C. §§

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

First, plaintiff’s complaint does not state a claim for relief against the United States of

America because the complaint fails to allege any particular facts showing how the United States

violated plaintiff’s rights. Moreover, the United States is immune from suit except where such

immunity has been waived by statute. United States v. Shaw, 309 U.S. 495, 500 01 (1940);

Blakely v. United States, 276 F.3d 853, 870 (6th Cir. 2002). Plaintiff has alleged no facts

indicating immunity has been waived in this case. Therefore, the complaint against the United

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States must be dismissed.

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. A district court has

jurisdiction over a suit between citizens of different states when the amount in controversy

“exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a).

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, the complaint indicates that both plaintiff and the non-United States defendants are

citizens of Ohio. Therefore, the complaint does not allege that the citizenship of plaintiff and

the defendants is diverse. 28 U.S.C. § 1332(1). This Court lacks subject matter jurisdiction on

the basis of diversity of citizenship over any state law claims plaintiff may be alleging.

Nor does the complaint allege a violation of federal law. District courts 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 his claims arise under federal

law. A case arises under federal law when an issue of federal law appears on the face of a well-

pleaded complaint. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987).

Plaintiff’s complaint appears to allege a violation of the Racketeer Influenced and

Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962. In pertinent part, RICO makes it

“unlawful for any person employed by or associated with any enterprise engaged in” activities

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affecting “interstate or foreign commerce . . . to conduct or participate, directly or indirectly, in

the conduct of such enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. §

1962(c). To state a claim for relief under the RICO statute, plaintiff must allege the following

elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.”

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). “To establish a RICO violation under

§ 1962(c), a plaintiff must allege that the RICO enterprise engaged in a ‘pattern of racketeering

activity’ consisting of at least two predicate acts of racketeering activity occurring within a ten-

year period. 18 U.S.C. § 1961(5).” Moon v. Harrison Piping Supply, 465 F.3d 719, 723 (6th

Cir. 2006). Plaintiff has failed to allege any facts meeting the elements of a RICO claim.

Plaintiff has not identified any other federal law that the defendants allegedly violated,

nor can the Court discern a violation of federal law based on the allegations of the complaint.

Therefore, plaintiff’s allegations do not state a federal constitutional or statutory claim over

which this Court might have jurisdiction under 28 U.S.C. § 1331.

Accordingly, the Court concludes that plaintiff’s complaint should be dismissed for lack

of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3) and, in the alternative, for failure to

state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B).

IT IS THEREFORE ORDERED THAT:

1. The September 6, 2023 Report and Recommendation be VACATED.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff’s complaint be DISMISSED with prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(B).

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

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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: 11/9/2023 Hern Ke ether

Karen L. Litkovitz

United States Magistrate Judge