The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
YUSUF BROWN-AUSITIN, : Case No. 1:23-cv-478
Plaintiff, Judge Matthew W. McFarland
.
ANNETTE CHAMBERS-SMITH, et al.,
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 58)
This action is before the Court upon the Report and Recommendation (the
“Report’”) (Doc. 58) of United States Magistrate Judge Stephanie K. Bowman, to whom
this case is referred pursuant to 28 U.S.C. § 636(b). In the Report, the Magistrate Judge
recommended that Plaintiff's Motion to Vacate Judgment (Doc. 39) and Motion for Order
to Show Cause (Doc. 53) be denied. Plaintiff objected to the Report (Doc. 58), and
Defendants filed Responses in Opposition (Docs. 60, 63). Thus, the matter is ripe for
review.
In Plaintiff's Motion to Vacate, he argued, among other things, that this Court
should set aside the judgment against him because his attorney lied about including a
RICO claim in the Complaint. (Motion to Vacate, Doc. 39, Pg. ID 207.) The Magistrate
Judge recommended denying this motion because the evidence that Plaintiff provided
for these alleged lies— messages between Plaintiff and his attorney —were unclear as to
which of his several cases they referred to. (Report, Doc. 58, Pg. ID 373.) Plaintiff objects,
arguing that the messages related to this case were properly labeled. (Objection, Doc. 59,
Pg. ID 385.) Even if this were true, however, Plaintiff cannot subvert the primary reason
why the Magistrate Judge recommended denying Plaintiff's Motion, that the RICO claim
which Plaintiff is now attempting to bring is futile due to a lack of standing. (Report, Doc.
58. Pg. ID 374.)
Plaintiff argues that he has standing to bring a RICO claim because he was forced
to work without pay while incarcerated. (Objection, Doc. 59, Pg. ID 385-86.) But, “RICO
provides a private cause of action for ‘[a]ny person injured in his business or property by
reason of a violation of section 1962 of this chapter.” Hemi Group, LLC v. City of New York,
559 U.S. 1, 6 (2010) (quoting 18 U.S.C. § 1964(c)). Put simply, the “[plaintiff] need[s] to
show they suffered a commercial injury” to have standing. Compound Prop. Mgmt, LLC v.
Build Realty, Inc., 343 F.R.D. 378, 406 (S.D. Ohio 2003). Here, Plaintiff's comparison of his
own personal labor to a commercial enterprise does not comport with the type of injury
contemplated by the RICO statute. Plaintiff provides no example of another court
extending RICO standing to such a circumstance and this Court declines to do so.
Accordingly, this objection is overruled.
Plaintiff next objects to the Report arguing that it failed to address Plaintiff's
Eighth Amendment, 42 U.S.C. § 1985, and 42 U.S.C. § 1986 claims. (Objection, Doc. 59,
Pg. ID 382.) Defendants respond, noting that Plaintiff's Motion to Vacate only addressed
his potential RICO claim and thus this objection is improper. (Response, Doc. 63, Pg. ID
428.) The Court agrees. The Sixth Circuit has generally held that, “issues raised for the
first time in objections to a magistrate judge’s report and recommendation are deemed
waived.” Morgan v. Trierweiler, 67 F. Ath 362, 367 (6th Cir. 2023) (cleaned up). Plaintiff
made no argument involving his Eighth Amendment, Section 1985, and Section 1986
claims in his Motion to Vacate. (See Motion to Vacate, Doc. 39.) Having waived this
objection, it is overruled.
Plaintiff last objects to the Magistrate Judge’s recommendation that Plaintiff's
Motion for a Show Cause Order be denied. (Objection, Doc. 59, Pg. ID 385.) Plaintiff
explains that, although he did sign a Complaint that did not contain any RICO claims,
the Court should excuse this because Plaintiff “was mailed more than one complaint by
his former attorney.” (Objection, Doc. 59, Pg. ID 385.) The number of draft complaints
sent to Plaintiff, however, is irrelevant and does not negate the fact that Plaintiff signed
and attested to the accuracy of the Complaint that was filed before the Court. (See
Complaint, Doc. 1, Pg. ID 18.) Thus, this objection is also overruled.
As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the
Court has made a de novo review of the record in this case. Plaintiff's Objections (Doc.
59) are not well taken and, therefore, OVERRULED. Accordingly, the Court ADOPTS
the Report and Recommendation (Doc. 58) and DENIES Plaintiff’s Motion to Vacate
Judgment (Doc. 39) and Motion for Order to Show Cause (Doc. 53).
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO.
Wtf Ucgelip
By:
JUDGE MATTHEW W. McFARLAND