The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CAROL YVONNE CUNNINGHAM, Case No. 1:24-cv-603
Plaintiff,
Barrett, J.
vs. Litkovitz, M.J.
SUE MILLER, REPORT AND
Defendant. RECOMMENDATION
Plaintiff Carol Yvonne Cunningham, a resident of Cincinnati, Ohio, has filed a pro se
civil complaint against Sue Miller, a care coordinator with the Council on Aging Elderly
Services Program in Blue Ash, Ohio. (Doc. 1-1). By separate Order, plaintiff has been
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This matter is now 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 28 U.S.C. § 1915(e)(2)(B).
Screening of Complaint
A. Legal Standard
In enacting the original in forma pauperis statute, 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.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; 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, 490
U.S. at 328-29; 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 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
Atlantic 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-
2
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. Plaintiff’s Complaint
Ms. Cunningham has submitted a complaint and several attachments. As best the Court
can discern from these documents, plaintiff was receiving services from the Council on Aging,
Hamilton County Elderly Services Program. She was presented with a “Contracted Agreement
for Continuing Services” in January 2024, which alleged that plaintiff had a history of difficult
and argumentative behaviors that inhibited her providers from addressing her needs. (Doc. 1-1
at PAGEID 8). The contract required plaintiff to treat Council on Aging staff with respect and
consideration and to engage in an open dialogue. Plaintiff refused to sign the contract and
alleges the information about her behavior is untrue. She states she does not argue about her
needed health care. She alleges the agency should be investigated for not taking care of their
clients and seeks a monetary judgment of “ten thousand dollars for lack of basic health needs.”
(Doc. 1-1 at PAGEID 6).
3
C. Resolution
Ms. Cunningham’s allegations are insufficient to state a claim with an arguable basis in
law over which this federal Court has subject matter jurisdiction.
First, Ms. Cunningham’s civil cover sheet indicates she is bring a claim under the False
Claims Act, 31 U.S.C. § 3729, et seq. The False Claims Act “prohibits any person from making
false or fraudulent claims for payment to the United States.” McGhee v. Light, 384 F. Supp. 3d
894, 897 (S.D. Ohio 2019) (quoting Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex
rel. Wilson, 545 U.S. 409, 411, (2005) (citing 31 U.S.C. § 3729), report and recommendation
adopted, No. 3:19-cv-143 (S.D. Ohio June 6, 2019) (Doc. 5). While “private individuals may
bring qui tam actions in the Government’s name for § 3729 violations,” a pro se plaintiff is
prohibited from bringing a qui tam action on behalf of the Government and the federal courts
lack subject matter jurisdiction to hear such claims. Id.; Brantley v. Title First Titling Agency,
No. 1:12-cv-608, 2012 WL 6725592, at *3 (S.D. Ohio Sept. 27, 2012), report and
recommendation adopted, 2012 WL 6725591 (S.D. Ohio Dec. 27, 2012). Therefore, the Court
is without jurisdiction over Ms. Cunningham’s False Claims Act claim.
Second, to the extent Ms. Cunningham 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). Ms. Cunningham has not alleged the requisite amount in controversy to establish
diversity jurisdiction. In addition, Ms. Cunningham and Ms. Miller are both Ohio citizens, and
there is no complete diversity of citizenship in this matter. This Court lacks subject matter
4
jurisdiction on the basis of diversity of citizenship over any state law claims Ms. Cunningham
may be alleging.
To the extent Ms. Cunningham invokes the Court’s federal question jurisdiction aside
from the False Claims Act, the complaint fails to state a claim for relief. 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, Ms. Cunningham must allege facts showing the cause
of action involves an issue of federal law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63
(1987). The undersigned is unable to discern from the facts alleged in the complaint any federal
statutory or constitutional provision that applies to give rise to an actionable claim for relief.
Accordingly, the complaint fails to state a claim upon which relief may be granted and
should be dismissed under 28 U.S.C. § 1915(e)(2)(B).
IT IS THEREFORE RECOMMENDED THAT:
1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
2. The Court 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 deny Ms. Cunningham leave to appeal in forma pauperis. Ms.
Cunningham remains free to apply to proceed in forma pauperis in the Court of Appeals. See
Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United
5
States Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997).
Date: 10/29/2024 Herm K Kthov-
Karen L. Litkovitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CAROL YVONNE CUNNINGHAM, Case No. 1:24-cv-603
Plaintiff,
Barrett, J.
vs. Litkovitz, M.J.
SUE MILLER,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. 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).
7