Fayne v. Clipper et al

Filing 4

Opinion and Order. This action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Christopher A. Boyko on 2/6/2013. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PRESTON FAYNE,
Plaintiff,
v.
WARDEN CLIPPER, et al.,
Defendants.

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CASE NO. 1:12 CV 2500
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:

Pro se Plaintiff Preston Fayne filed this action under 42 U.S.C. § 1983 against Lorain
Correctional Institution (“LORCI”) Warden Ms. Clipper and Ohio Department of Rehabilitation
and Correction (“ODRC”) Director Gary C. Mohr. In the Complaint, Plaintiff challenges the
ODRC policy requiring family members and friends desiring to send money to an inmate to do
so through a company called JPAY. He seeks injunctive relief.
I. BACKGROUND
Plaintiff objects to the new ODRC policy requiring all money orders for inmates to be
sent through the Florida company, JPAY. Prior to the initiation of the new policy on October 3,
2012, money orders intended for prisoners were sent directly to the institution. Plaintiff claims
JPAY assesses service fees of $1.50 for every $20.00 sent to an inmate. The fees are deducted

from the amount of the money order, thereby reducing the amount of funds available to the
inmate. Moreover, the company requires all incoming money orders to be accompanied by a
copy of the sender’s identification. Plaintiff indicates his family is uncomfortable with this new
policy because they fear it will make them vulnerable to identity theft. He also alleges his
family does not have access to a photocopier. He asks this Court to “disallow this arbitrary
power move.” (Doc. 1 at 6).
II. LAW AND ANALYSIS
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982)(per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a
claim upon which relief can be granted, or if it lacks an arguable basis in law or fact.1 Neitzke v.
Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.
City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or
fact when it is premised on an indisputably meritless legal theory or when the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327.
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
1

An in forma pauperis claim may be dismissed sua sponte, without prior notice to the
Plaintiff and without service of process on the Defendant, if the Court explicitly states that it is
invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of
the reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir.
1997); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054
(1986); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177,
1179 (6th Cir. 1985).
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pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555.
The Plaintiff is not required to include detailed factual allegations, but must provide more than
“an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 662, 677-78.
A pleading that offers legal conclusions or a simple recitation of the elements of a cause of
action will not meet this pleading standard. Id. In reviewing a Complaint, the Court must
construe the pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter
Reynolds, Inc., 151 F.3d 559, 561 (6th Cir.1998).
Federal courts are courts of limited jurisdiction and, unlike state trial courts, they do not
have general jurisdiction to review all questions of law. See Ohio ex rel. Skaggs v. Brunner, 549
F.3d 468, 474 (6th Cir.2008). Instead they have only the authority to decide cases that the
Constitution and Congress have empowered them to resolve. Id. Consequently, “[i]t is to be
presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377(1994)(internal citation omitted).
Generally speaking, the Constitution and Congress have given federal courts authority to
hear a case only when the case raises a federal question or when diversity of citizenship exists
between the parties. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Diversity of
citizenship does not exist in this case as Plaintiff alleges both he and Defendants are residents of
Ohio. See 28 U.S.C. §1332; Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)(stating
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that federal courts only entertain jurisdiction of cases based on diversity of citizenship under
§1332 if there is complete diversity, i.e. where no Plaintiff is the citizen of the same state as any
Defendant). Therefore, if federal jurisdiction exists in this case it must be because the case
raises a federal question.
In determining whether a claim arises under federal law, the Court looks only to the
“well-pleaded allegations of the Complaint and ignores potential defenses” the Defendants may
raise. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir.2007). Although the
well-pleaded-complaint rule focuses on what the Plaintiff alleges, it allows the Court to look
past the words of the Complaint to determine whether the allegations ultimately involve a
federal question. Ohio ex rel. Skaggs, 549 F.3d at 475. In addition to causes of action expressly
created by federal law, federal question jurisdiction also reaches ostensible state law claims that:
(1) necessarily depend on a substantial and disputed federal issue, (2) are completely preempted
by federal law or (3) are truly federal-law claims in disguise. See Mikulski, 501 F.3d at 560;
City of Warren v. City of Detroit, 495 F.3d 282, 286 (6th Cir.2007).
Here, Plaintiff is proceeding pro se and pro se plaintiffs enjoy the benefit of a liberal
construction of their pleadings and filings. Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir.1999).
Indeed, this standard of liberal construction “requires active interpretation ... to construe a pro se
petition ‘to encompass any allegation stating federal relief.’” Haines, 404 U.S. at 520. Even
with that liberal construction, however, Plaintiff failed to properly identify a federal question in
this case. Although he utilized a complaint form for a civil rights action filed by a prisoner, he
does not identify any constitutional rights which he believes this policy violates, and none is
apparent on the face of the Complaint.
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Principles requiring generous construction of pro se pleadings are not without limits.
See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Beaudett v. City of Hampton, 775 F.2d
1274, 1277 (4th Cir. 1985). A complaint must contain either direct or inferential allegations
respecting all the material elements of some viable legal theory to satisfy federal notice pleading
requirements. See Schied v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir.
1988). District courts are not required to conjure up questions never squarely presented to them
or to construct full blown claims from sentence fragments. Beaudett, 775 F.2d at 1278. To do
so would “require ...[the courts] to explore exhaustively all potential claims of a pro se plaintiff,
... [and] would...transform the district court from its legitimate advisory role to the improper role
of an advocate seeking out the strongest arguments and most successful strategies for a party.”
While the Court carefully examined the Complaint and read it with a critical eye for an active
and liberal construction, the Court could find no federal claim upon which relief can be granted.
III. CONCLUSION
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.2
IT IS SO ORDERED.

Dated: February 6, 2013

2

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE

28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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