Clark v. Villilio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

APRIL CLARK,

Plaintiff,

Civil Action 2:23-cv-4202

v. Chief Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

SUSAN VILLILIO, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, April Clark, an Ohio resident who is proceeding pro se, brings this action against

Defendants Susan Villilio, Erica Jones, Karly Tennant, and the Alcohol, Drug, and Mental Health

Board of Franklin County (“ADAMH Board”). This matter is before the Undersigned for

consideration of Plaintiff’s Motion to Leave to Proceed in forma pauperis (Doc. 1) and the initial

screen of Plaintiff’s Complaint (Doc. 1-1) under 28 U.S.C. § 1915(e)(2). Plaintiff’s request to

proceed in forma pauperis is GRANTED. All judicial officers who render services in this action

shall do so as if the costs have been prepaid. 28 U.S.C. § 1915(a). Having performed an initial

screen, the Undersigned RECOMMENDS that Plaintiff’s Complaint (Doc. 1-1) be DISMISSED.

I. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). “A claim is frivolous if it lacks ‘an arguable basis either in law or in fact.’” Flores

v. U.S. Atty. Gen., No. 2:14-CV-84, 2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014) (quoting

Neitzke v. Williams, 490 U.S. 319, 325 (1989)). This occurs when “indisputably meritless” legal

theories underlie the complaint, or when a complaint relies on “fantastic or delusional” allegations.

Flores, 2014 WL 358460, at *2 (citing Neitzke, 490 U.S. at 327–28).

In reviewing a complaint, the Court must construe it in Plaintiff's favor, accept all well-

pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Yet,

a court is not required to accept factual allegations set forth in a complaint as true when such

factual allegations are “clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F. App’x

427, 429–30 (6th Cir. 2009). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556). Further, “pro se litigants are not relieved of the duty to develop claims with an appropriate

degree of specificity.” Kafele v. Lerner, Sampson, Rothfuss, L.P.A., 161 F. App’x 487, 491 (6th

Cir. 2005). The complaint must include more than “labels and conclusions” and “formulaic

recitation[s] of the elements of a cause of action . . . .” Id. The role of the court is not to “conjure

allegations on a litigant's behalf.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004) (internal

quotation marks and citations omitted). In sum, although pro se complaints are to be construed

liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required.

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

II. DISCUSSION

In her Complaint, Plaintiff names Susan Villilio, Erica Jones, Karly Tennant, and the

Alcohol, Drug, and the ADAMH Board as defendants. (Doc. 1-1 at 2). Plaintiff’s claims center

on Defendant Villilio filing false accusations about Plaintiff in a “frivolous” lawsuit in Ohio

Probate Court. (Id. at 4). Plaintiff says that Villilio, in collusion with Jones and Tennant, “defamed

Plaintiff[’s] professional name by filing statements that are untrue in efforts to cause harm.” (Id.).

Plaintiff says that these actions were taken as retaliation for her “guardian advocacy.” (Id.). As

relief, Plaintiff seeks damages of $100,000 per Defendant. (Id. at 3).

Plaintiff’s Complaint fails to state a claim upon which relief can be granted. When directed

to describe the federal civil statue that gives rise to her cause of action, Plaintiff wrote 18 U.S.C.

§ 287 (false, fictitious, or fraudulent claims). (Id.). But 18 U.S.C. § 287 is a criminal statute;

Plaintiff, as a private citizen, is not permitted to sue under a criminal statute. See Kelly v. City of

New Phila., No. 5:11CV474, 2011 WL 3705151, at *2–3 (N.D. Ohio Aug. 22, 2011) (quoting

United States v. Oguaju, 76 F. App’x 579, 581 (6th Cir. 2003)) (“The district court properly

dismissed [plaintiff’s] claim pursuant to [two criminal statutes] because [he] has no private right

of action under either of these criminal statutes.”). And “[w]here a plaintiff has no private right of

action, a plaintiff has not stated a claim upon which relief can be granted.” Flood v. Reed, No.

2:16-CV-778, 2017 WL 1021364, at *3–4 (S.D. Ohio Mar. 16, 2017) (citing Kafele v. Frank &

Woolridge Co., 108 F. App’x. 307, 308–09 (6th Cir. 2004)).

The remainder of Plaintiff’s claims—slander, libel, defamation, frivolous conduct, and

negligence—arise under state law. (Doc. 1-2). But Plaintiff acknowledged that she and all

Defendants were citizens of Ohio, so the Court lacks diversity jurisdiction over this action. (Id.;

see Doc 1-1 at 1–2); see 28 U.S.C. § 1332(a); Smith v. Donald, 2:17-cv-496, 2017 WL 2619338,

at *3 (S.D. Ohio June 16, 2017) (dismissing claims where a Tennessee resident sued other

Tennesseans, because complete diversity did not exist between all adverse parties and the

plaintiff’s only remaining claims rested in state law). And because Plaintiff has not alleged a

plausible basis for original jurisdiction, the Court also lacks pendant jurisdiction for the remaining

claims arising under state law. (Doc. 1-2); see 28 U.S.C. § 1367(a); Brooks v. Rothe, 577 F.3d

701, 709 (6th Cir. 2009) (noting that when all federal claims are dismissed before trial, state law

claims “generally should be dismissed as well”). Accordingly, Plaintiff’s Complaint fails to state

a claim on which relief can be granted and should be DISMISSED.

III. CONCLUSION

Plaintiff’s request to proceed in for a pauperis is GRANTED. Based upon the foregoing,

however, it is RECOMMENDED that Plaintiff’s Complaint be DISMISSED.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence, or may

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: January 25, 2024 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE