Smith et al v. Cincinnati City of et al

Filing 28

ORDER that plaintiffs' 4 MOTION to Stay is Denied; plaintiffs' 10 MOTION to consolidate is Denied; plaintiffs' 22 MOTION to trial is Denied; plaintiffs' 24 MOTION to Stay is Denied; and plaintiffs' 26 call to action is Denied. REPORT AND RECOMMENDATION that plaintiffs 10 MOTION for Summary Judgment be Denied; defendants Mark Levy, City of Cincinnati, and Constance Gallagher's 11 14 15 MOTIONS to Dismiss be Granted; and plaintiffs' claims against defendants Diane C. Goodwyn, Alesia M. Brown, and the United States Patent and Trademark Office be Dismissed. ( Objections to R&R due by 3/4/2013). Signed by Magistrate Judge Karen L. Litkovitz on 2/13/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JEFFREY SMITH, et al.,
Plaintiffs,
vs.
CITY OF CINCINNATI, et al.,
Defendants.

Case No. 1:12-cv-648
Spiegel, J.
Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION

Plaintiff, Jeffrey Smith, proceeding pro se, brings this action on behalf of himself and
J.M. Smith, plaintiffs minor son, against defendants the City of Cincinnati, Connie Gallagher,
the United States Patent and Trademark Office, Diane C. Goodwin, Alesia M. Brown, and Mark
Levy, alleging violations of his and J.M. Smith's constitutional rights. (Doc. 1). This matter is
before the Court on: (1) plaintiffs' motion for an emergency stay (Doc. 4); (2) plaintiffs' motion
to consolidate the complaint and for summary judgment (Doc. 10) and defendant City of
Cincinnati's response in opposition (Doc. 18); (3) defendants Mark Levy, City of Cincinnati, and
Constance Gallagher's moti.ons to dismiss to which plaintiffs have not responded (Docs. 11, 14,
15) and defendants Mark Levy and Constance Gallagher's reply memorandums (Docs. 19, 20);
(4) plaintiffs' motion to trial (Doc. 22); (5) plaintiffs' motion to stay (Doc. 24) and defendant
Connie Gallagher's response in opposition (Doc. 25); and (6) plaintiffs' call to action. (Doc. 26).
The Court will address the motions in tum.
I. Plaintiffs' Motion for an Emergency Stay (Doc. 4)

Plaintiffs request that the Court enter an order enjoining the City of Cincinnati from
transferring any property titles related to the Cincinnati Blue Ash Airport asserting that the
property is encumbered. Plaintiffs further seek to have the Court stay all administrative hearing

or police actions related to 1311 Lincoln Avenue, 45206, claiming that these actions are subject
to res judicata principles.
Plaintiffs' motion does not provide any specific facts which would permit the Court to
grant plaintiffs' requests. Upon review of plaintiffs' motion and complaint, the undersigned is
unable to discern plaintiffs' relationship to the Cincinnati Blue Ash Airport property, how
plaintiffs have standing to seek an injunction of any purported sale of this property, how this
property is encumbered as plaintiffs contend, or whether the property is subject to or being
transferred. Plaintiffs' requests pertaining to the Lincoln Avenue property are equally vague.
There are no allegations in the complaint nor are there details in plaintiffs' motion from which
the Court is able to determine plaintiffs' interest in this property or whether this Court has
jurisdiction or the authority to enter the Order plaintiffs request. Plaintiffs have attached a
"Reschedule Notice" dated August 27, 2012 from the City of Cincinnati directed to plaintiff
regarding an administrative hearing for plaintiff Jeffrey Smith's alleged violations of Cincinnati
Municipal Codes. Yet, it remains unclear what specific relief plaintiffs seek and whether this
Court has the authority to provide it. As plaintiffs' motion fails to provide any basis in law or
fact for the Court to issue the injunctions requested, it is DENIED.
II. Plaintiffs' Motion to Consolidate and for Summary Judgment (Doc. 10)
Plaintiffs' motion appears to relate to an aircraft owned by plaintiff Jeffrey Smith which
is housed at the Cincinnati Blue Ash Airport. Plaintiffs assert that third-parties improperly
entered the aircraft and that defendants have discriminated against or harassed them by not
allocating federal funds to the Cincinnati Blue Ash Airport. Plaintiffs further assert that
defendants illegally entered and possessed property at 1311 Lincoln Avenue pursuant to a notice
of eviction and that associated hearings and citations were "illegal." (Doc. 10 at 7-9).

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Again, plaintiffs' motion is largely undecipherable and provides no clear basis which
would permit the Court to grant the relief requested. While plaintiffs request that this matter be
consolidated, they do not sufficiently identify the other matter with which it should be
consolidated. Due to this vagueness, plaintiffs' motion to consolidate is denied.
To the extent plaintiffs seek summary judgment on any claim raised by the complaint, the
undersigned recommends that plaintiffs' motion be denied. Federal Rule of Civil Procedure 56
governs motions for summary judgment. Rule 56 requires parties moving for summary
judgment to show "that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). Parties raising summary
judgment motions must support their factual positions with admissible evidence. Fed. R. Civ. P.
56(c)(l).
Plaintiffs have presented no evidence whatsoever in support of their motion for summary
judgment. As such, the motion must be denied pursuant to the requirements of Fed. R. Civ. P.
56. Further, defendant City of Cincinnati has requested that the motion be denied pursuant to
Fed. R. Civ. P. 56(d) due to the early procedural posture of this case. (Doc. 18 at 2). The
undersigned agrees. Accordingly, plaintiffs' motion for summary judgment should be denied for
failure to comply with the requirements of Fed. R. Civ. P. 56( a) or, alternatively, it should be
denied as premature pursuant to Fed. R. Civ. P. 56(d).

III. Defendants' Motions to Dismiss (Docs. 11, 14, 15)
Defendants Mark Levy, City of Cincinnati, and Constance Gallagher move for dismissal
of plaintiffs' claims pursuant to Rule 12(b)(6), Fed. R. Civ. P., asserting that plaintiffs' complaint
fails to state any legally cognizable claims against them.

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Rule 12(b)( 6) authorizes dismissal of a complaint for "failure to state a claim upon which
relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss,
plaintiffs 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, 663 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." !d. (citing Twombly, 550 U.S. at 556).
Furthermore, the plaintiff must provide in the claim "more than an unadorned, the-defendantunlawfully-harmed-me accusation." !d. (citing Twombly, 550 U.S. at 555).
It is well-settled that a document filed prose is "to be liberally construed" and that a pro

se complaint, "however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers .... " Erickson v. Pardus, 551 U.S. 89,94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). However, the Sixth Circuit has recognized the Supreme

Court's "liberal construction" case law has not had the effect of"abrogat[ing] basic pleading
essentials" in prose suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Courts are not
required to devote time to a case when the nature of a pro se plaintiffs claim "defies
comprehension." Roper v. Ford Motor Co., No. 1:09cv427, 2010 WL 2670827, at *3 (S.D. Ohio
April6, 2010) (Report & Recommendation), adopted, 2010 WL 2670697 (S.D. Ohio July 1,
2010) (citing Jones v. Ravitz, No. 07-10128, 2007 WL 2004755, at *2 (E.D. Mich. July 6,
2007)).
Plaintiffs' allegations against defendants Mark Levy, City of Cincinnati, and Constance
Gallagher are insufficient to state a claim for violations of their rights as guaranteed by the
Constitution of the United States or under any federal statute. Plaintiffs simply name these

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defendants in the caption of their complaint but allege no facts whatsoever regarding their
conduct which would suffice to state any cognizable claim. Even under the liberal construction
afforded to pro se plaintiffs, the instant complaint must be dismissed. The complaint fails to
include any allegations as to how, why, or for what conduct these individuals have been named
as defendants. See Jackson v. Gill, 92 F. App'x 171, 173 (6th Cir. 2004) (failure to include any
factual allegations supporting claims is sufficient basis for dismissing prose plaintiffs claims);

Dugan v. Martin Marietta Aerospace, 760 F.2d 397, 399 (2d Cir. 1985) (same). Rather, to the
extent that it is decipherable, plaintiffs' complaint consists entirely oflegal conclusions that
defendants have violated their constitutional and federal rights. Such vague and conclusory
allegations are precisely the type prohibited by Iqbal and Twombly and, accordingly, cannot
survive defendants' Fed. R. Civ. P. 12(b)(6) motions to dismiss. See Center for Bio-Ethical

Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (citing Iqbal, 556 U.S. at 678)
(court not required to accept summary allegations or unwarranted legal conclusions in
determining whether complaint states a claim for relief). Accordingly, the undersigned
recommends that defendants Mark Levy, City of Cincinnati, and Constance Gallagher's motions
to dismiss (Docs. 11, 14, 15) be granted.
The Court notes that defendants Diane C. Goodwyn, Alesia M. Brown, and the United
States Patent and Trademark Office have not filed an appearance or a responsive pleading.
Regardless, the Court recommends that plaintiffs' claims against these defendants be dismissed
as plaintiffs have failed to state a facially plausible claim for relief against any of them.
The Court's authority "to screen and sua sponte dismiss complaints under 28 U.S.C. §
1915(e)(2) is limited to those complaints filed in forma pauperis." Price-If v. Ragan, No. 08144 72-BC, 2008 WL 53 81600, at *1 (E.D. Mich. Dec. 22, 2008) (citing Benson v. 0 'Brian, 179

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, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

F.3d 1014, 1015 (6th Cir. 1999)). Section 1915 deals specifically with complaints brought by in

forma pauperis litigants. Here, however, plaintiff has paid the filing fee. See Doc. 1, Ex. 2
(filing fee receipt). "Generally, a district court may not sua sponte dismiss a complaint where the
filing fee has been paid unless the court gives the plaintiff the opportunity to amend the
complaint." Apple v. Glenn, 183 F.3d 477, 478 (6th Cir. 1999). Where, however, a plaintiffs
complaint consists of allegations that "are totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion[,]" the district court may sua sponte
dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l). ld. at
479 (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974). In the case of such meritless
allegations, a plaintiff need not be given the opportunity to amend his complaint.
The undersigned recommends that plaintiffs' claims against Diane C. Goodwyn, Alesia
M. Brown, and the United States Patent and Trademark Office be dismissed sua sponte for lack
of subject matter jurisdiction. Plaintiffs' complaint contains no factual allegations directed at
any of these defendants, much less any from which the Court could draw the reasonable
inference that they are liable to plaintiffs for any alleged misconduct. See Iqbal, 556 U.S. at 663;

Dugan, 760 F.2d at 399. Again, plaintiffs' complaint contains vague, unintelligible, and
conclusory claims couched as factual allegations. Such allegations fail to comply with the
pleading requirements laid out by Fed. R. Civ. P. 8 or the standards enunciated in Iqbal and

Twombly. See Lillard, 76 F.3d at 726 ("in the context of a civil rights claim ... conclusory
allegations of unconstitutional conduct without specific factual allegations fail to state a claim
under section 1983"). Here, as plaintiffs' complaint contains no factual allegations whatsoever
against any defendant, including Diane C. Goodwyn, Alesia M. Brown, and the United States

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Patent and Trademark Office, it must be dismissed for failure to state a claim under Fed. R. Civ.
P. 12(b)(6) or, alternatively, for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(l).

IV. Plaintiffs' Motion to Trial (Doc. 22)
Plaintiffs' motion was filed in connection with a separate lawsuit filed in this district,

Smith, et al. v. Indian Hill Exempted Village School Dist., et al., No. 10-cv-718 (S.D. Ohio
201 0). The motion only appears on the instant docket at plaintiffs' request and assumption that
this matter was consolidated with the Indian Hill case. See Doc. 22 at 8. However, the district
judge in this matter expressly determined that the instant case was not related to the Indian Hill
matter and entered an order explicitly stating this. See Doc. 9 (Case Memorandum Order).
Accordingly, the undersigned concludes that plaintiffs' motion to trial was improperly filed in
this case and, consequently, it is denied.

V. Plaintiffs' Motion to Stay (Doc. 24)
Plaintiffs' motion to stay requests that the Court "take non-dispositive actions herein with
jurisdiction and fulfill the duty to determination that properly requires a stay of all the city in
local and state actions against the plaintiffs. The Municipal Court of Judge Russel Mock should
be shut down pending apprehension." (Doc. 24 at 2). Further, plaintiffs request that the Court
appoint a special prosecutor and order the Attorney General and Federal Bureau of Investigation
"to be made available for expedited apprehension and criminal prosecution .... " Id. at 3.
Despite its best efforts, the Court is wholly unable to discern what relief plaintiffs request. To
the extent plaintiffs seek an order "shutting down" a municipal court, the Court is without any
jurisdiction or authority to grant such a request nor have plaintiffs articulated any legal basis for
doing so. Moreover, as plaintiffs' motion appears to relate entirely to matters currently before

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the municipal court involving parties not involved in the instant case, the motion is improper.
For these reasons, plaintiffs' motion to stay is denied.

VI. Plaintiffs' Call to Action (Doc. 26)
Similar to plaintiffs' motion to trial (Doc. 22), plaintiffs' "call to action" was filed in
connection with the Indian Hill litigation and was filed in the instant case at plaintiffs' request.

See Doc 26 at 1. As stated above, the Indian Hill litigation was not consolidated with this case.
See Doc. 9. The undersigned concludes that plaintiffs' call to action was improperly filed in this
case and it is therefore denied.

VII. Conclusion
For the reasons stated herein, plaintiffs' motion to stay (Doc. 4) is DENIED; plaintiffs'
motion to consolidate (Doc. 10) is DENIED; plaintiffs' motion to trial (Doc. 22) is DENIED;
plaintiffs' motion to stay (Doc. 24) is DENIED; and plaintiffs' call to action (Doc. 26) is

DENIED.
Further, IT IS RECOMMENDED THAT plaintiffs' motion for summary judgment
(Doc. 10) be DENIED; defendants Mark Levy, City of Cincinnati, and Constance Gallagher's
motions to dismiss (Docs. 11, 14, 15) be GRANTED; and plaintiffs' claims against defendants
Diane C. Goodwyn, Alesia M. Brown, and the United States Patent and Trademark Office be

DISMISSED.

~~

Karen L. Litkovttz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CaseNo. 1:12-cv-648

JEFFREY SMITH, et al.,
Plaintiffs,

Spiegel, J.
Litkovitz, M.J.

vs.
CITY OF CINCINNATI, et al.,
Defendants.

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 ofthe Report objected
to and shall be accompanied by a memorandum oflaw 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).

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