Cook v. Miller

Filing 5

Opinion & Order signed by Judge James S. Gwin on 10/23/18. The Court grants plaintiff's motion to proceed in forma pauperis and, for the reasons set forth in this order, dismisses this case pursuant to 28 U.S.C. § 1915(e)(2)(B). 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. (Related Docs. 1 and 4 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------MELVIN COOK,
Plaintiff,
vs.
HOLLY MILLER,
Defendant.

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CASE NO. 5:18CV01122

OPINION & ORDER
[Resolving Doc. 1, 4]

------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Before the Court is the complaint of pro se Plaintiff Melvin Cook against Defendant
Holly Miller pursuant to 42 U.S.C. § 1983.1 Also before the Court is Plaintiff’s revised
motion to proceed in forma pauperis,2 which is granted. For the reasons that follow, this
case is dismissed.
I. Background
Plaintiff states his claim, in its entirety, as follows:3
Defendant sought to deny Plaintiff job which Plaintiff legally won. Made racial slurs
to plaintiff in denying help to plaintiff secure job. Harassed plaintiff on job. Refused
to grant extension to plaintiff for situations out of plaintiff’s control. Threatened to
arrest plaintiff on job site. Refused to pay plaintiff for work done and materials
purchased. None of those actions were taken against any of the white contractors in
the program. Refused to award further jobs to plaintiff which plaintiff was the low
bidder.

1

Doc. 1.

2

Doc. 4.

3

Doc. 1 at 5.

Case No. 5:18CV01122
Gwin, J.
Plaintiff seeks $10,000 for work performed and materials purchased, $40,000 for
harassment and a demeaning and hostile workplace, and punitive damages.4
In the Complaint and attachments thereto, Defendant is identified solely as Holly
Miller, with an address of 175 S. Main St. Room 207, Akron, Ohio 44308.

II. Discussion
A. Standard of Review
Although pro se pleadings are liberally construed,5 the 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.6 A claim lacks an
arguable basis in law or fact when it is premised upon an indisputably meritless legal
theory or when the factual contentions are clearly baseless.7
The dismissal standard for Fed. R. Civ. P. 12(b)(6)articulated in Bell Atl. Corp. v.

Twombly,8 and Ashcroft v. Iqbal,9 governs dismissal for failure to state a claim under §
1915(e)(2)(B)(ii).10 A cause of action fails to state a claim upon which relief may be granted
when it lacks plausibility in the complaint.11

4

Id. at 6.

Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v.
Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).
5

Neitzke v. Williams, 490 U.S. 319, 328, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
6

7

Neitzke, 490 U.S. at 327.

8

550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

9

556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

10

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).

11

Twombly, 550 U.S. at 564.

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Case No. 5:18CV01122
Gwin, J.
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.12 Plaintiff is not required to include detailed factual allegations, but must provide
more than an unadorned, the defendant-unlawfully-harmed-me accusation.13 A pleading
that offers legal conclusions or a simple recitation of the elements of a cause of action does
not meet this pleading standard.14 In reviewing a complaint, the Court must construe the
pleading in the light most favorable to the plaintiff.15
B. Plaintiff Fails to State a § 1983 Claim
Fed. R. Civ. P. 8(a)(2) governs basic federal pleading requirements, and requires that
the pleading contain a short and plain statement of the claim showing that the pleader is
entitled to relief.16 “A pair of Supreme Court decisions . . . confirms that [Rule 8] imposes
legal and factual demands on the authors of complaints.”17 “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.”18
In order to state a plausible claim for relief upon which relief can be granted under
42 U.S.C. § 1983, Cook must allege two essential elements: (1) that a right secured by the

12

Id. at 555.

13

Iqbal, 556 U.S. at 678.

14

Id.

15

Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998) (citing Sistrunk, 99 F.3d at 197).

16

Iqbal, 556 U.S. at 677-78.

17

16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in

original) (citing Twombly and Iqbal).
18

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

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Case No. 5:18CV01122
Gwin, J.
Constitution or laws of the United States was violated, and (2) the claimed violation was
committed by a “person acting under color of state law.”19 “The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have
exercised power ‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’”20
Here, there are no allegations in the Complaint, nor can the Court infer, that
Defendant Holly Miller is a person acting under color of state law. Therefore, the
Complaint does not contain either direct or inferential allegations respecting an essential
element of a viable § 1983 claim against Defendant.21 The Court is not required to conjure
unpleaded facts or construct claims against Defendant on behalf of Plaintiff.22 Even
liberally construed, Plaintiff’s Complaint fails to state a § 1983 claim upon which relief can
be granted, and is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

19

West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (U.S. 1988) (citation omitted).

20

Id. at 49 (quoting U.S. v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941)).

21

See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988).

22

See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citation omitted); Beaudett v. City of Hampton,
775 F.2d 1274, 1277-78 (4th Cir. 1985).

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Case No. 5:18CV01122
Gwin, J.
III. Conclusion
For all of the foregoing reasons, this case is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B), and closed. Plaintiff’s motion to proceed in forma pauperis is granted.23 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.
IT IS SO ORDERED.

s/

Dated: October 23, 2018

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

23

Doc. 4.

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