Castanias v. Lipton et al

Filing 4

REPORT AND RECOMMENDATIONS by Magistrate Judge Karen L. Litkovitz. It is therefore RECOMMENDED that Plaintiff's claims against defendant Lipton be DISMISSED. It is THEREFORE ORDERED that: (1) The United States Marshal serve a copy of the c omplaint, summons, and this order upon defendants Ohio Department of Job and Family Services and the Warren County Ohio Child Support Enforcement Agency as directed by plaintiff. (2) Plaintiff serve upon defendants or, if appearance has been entered by counsel, upon defendants attorney, a copy of every further pleading or other document submitted for consideration by the Court. (3) Plaintiff shall inform the Court promptly of any changes in his address which may occur du ring the pendency of this lawsuit filed by Christopher F. Castanias ( Objections to R&R due by 5/31/2011).Signed by Magistrate Judge Karen L. Litkovitz on 5/13/11. (lk) (Additional attachment(s) added on 5/13/2011: # 1 Certified Mail Receipt) (lk).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHRISTOPHER F. CASTANIAS,
Plaintiff

Case No. 1:11-cv-296
Weber, J.

vs
ALECIA C. LIPTON, et al.,
Defendants

ORDER AND REPORT AND
RECOMMENDATION

Plaintiff, a resident of Lebanon, Ohio, brings this civil rights action under 42 U.S.C. §
1983 against Alecia C. Lipton, the Ohio Department of Job and Family Services, and the
Warren County Ohio Child Support Enforcement Agency. By separate Order issued this date,
plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This matter is before the Court for a sua sponte review of the complaint to determine whether
the complaint, or any portion thereof, should be dismissed as frivolous or malicious, for failure
to state a claim upon which relief may be granted, or because it seeks monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
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
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 v. Williams, 490

U.S. 319, 328-29 (1989); 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 v. Hernandez, 504 U.S. 25, 32 (1992); 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 has also authorized the sua sponte dismissal of complaints which fail to state
a claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). Plaintiff’s
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 556). The Court must accept all well-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)). While a complaint need not contain
“detailed factual allegations,” it must provide “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at
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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.
Plaintiff, who is proceeding pro se, alleges that in September 2009, he was denied the
appointment of counsel in a contempt proceeding for failure to pay court-ordered child support.
Plaintiff alleges that he was unable to “purge” himself of the contempt and was sentenced to 83
days in jail. He further alleges he never received a summons in the proceeding and learned
about the hearing while reviewing the county’s on-line docket system while exploring other
matters involving the parties. Plaintiff alleges a violation of his constitutional rights and seeks
injunctive and monetary relief.
At this juncture, the Court concludes that the claims against defendants Ohio
Department of Job and Family Services and the Warren County Ohio Child Support
Enforcement Agency may proceed. See 28 U.S.C. § 1915(e)(2)(B).
However, plaintiff’s complaint against defendant Lipton should be dismissed. To state
a claim for relief under 42 U.S.C. § 1983, plaintiff must allege facts showing that defendant
Lipton acted under color of state law and that her conduct deprived plaintiff of some right
secured by the Constitution or laws of the United States. Graham v. National Collegiate
Athletic Ass'n, 804 F.2d 953, 957 (6th Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)).
Plaintiff’s complaint fails to allege facts showing defendant Lipton acted under color of state
law. Plaintiff alleges that Lipton and an employee of the Warren County Ohio Child Support

Enforcement Agency initiated child support enforcement proceedings in the court of common

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pleas which ultimately resulted in plaintiff’s incarceration for his failure to pay child support.
A private individual who merely takes legal measures to obtain child support for a child is not a
state actor for purposes of Section 1983. See DiPietro v. New Jersey Family Support Payment
Center, No. 08-4761, 2009 WL 1635568, at *5 (D.N.J. June 10, 2009); Joynes v. Meconi, No.
05-332, 2006 WL 2819762, at *11 (D. Del. Sept. 30, 2006). Therefore, plaintiff’s section 1983
claims against defendant Lipton should be dismissed.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s claims against defendant Lipton be DISMISSED.
IT IS THEREFORE ORDERED:
1. The United States Marshal shall serve a copy of the complaint, summons, and this order
upon defendants Ohio Department of Job and Family Services and the Warren County Ohio
Child Support Enforcement Agency as directed by plaintiff. All costs of service shall be
advanced by the United States.
2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel, upon
defendants’ attorney, a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed with the
clerk of court a certificate stating the date a true and correct copy of any document was mailed
to defendant or counsel. Any paper received by a district judge or magistrate judge which has
not been filed with the clerk or which fails to include a certificate of service will be disregarded
by the court.

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3. Plaintiff shall inform the Court promptly of any changes in his address which may occur
during the pendency of this lawsuit.

Date: 5/13/2011

s/Karen L. Litkovitz
Karen L. Litkovitz, Magistrate Judge
United States District Court

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHRISTOPHER F. CASTANIAS,
Plaintiff

Case No. 1:11-cv-296
Weber, J.

vs
ALECIA C. LIPTON, et al.,
Defendants
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. 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).

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