Hammonds v. Johnson
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Mark Hammonds; IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiffs complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 2. The Court certify pursu ant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wriggles worth, 114 F.3d 601 (6th Cir. 1997). Objections to R&R due by 12/1/2022. Signed by Magistrate Judge Caroline H. Gentry on 11/17/22. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
Case No. 1:22-cv-563
District Judge Douglas R. Cole
Magistrate Judge Caroline H. Gentry
REPORT AND RECOMMENDATION
Plaintiff, a prisoner at the Correctional Reception Center, has filed a pro se civil rights
complaint in this Court against defendant Tameka Johnson. By separate Order plaintiff has been
granted leave to proceed in forma pauperis. This matter is before the Court for a sua sponte
review of the complaint to determine whether the complaint, or any portion of it, should be
dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such relief. See Prison
Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
Screening of Plaintiff’s Complaint
A. Legal Standard
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower
judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing
so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324
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(1989)). To address this concern, Congress included subsection (e)(1) as part of the statute, which
provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that—
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). Thus, § 1915(e) requires
sua sponte dismissal of an action upon the Court’s determination that the action is frivolous or
malicious, or upon determination that the action fails to state a claim upon which relief may be
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill
v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands
on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d
502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
Formerly 28 U.S.C. § 1915(d).
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of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint
must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
“The plausibility of an inference depends on a host of
considerations, including common sense and the strength of competing explanations for the
defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds
pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’” Garrett
v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits;
“‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. Motors,
482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
B. Allegations in the Complaint
Plaintiff makes the following factual allegations in the complaint:
Tameka Johnson lied on me before a court of law by saying I did something that
help the County of Hamilton courts convict me of a lie not once but twice the first
time was on 2/2/2020 and the second time on 5/2022 when Ms. Johnson knew she
was lying on me both times.
(Doc. 1, Complaint at PageID 6). Plaintiff seeks monetary damages as relief. (Id. at PageID 7).
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Plaintiff’s allegations are insufficient to state a claim with an arguable basis in law over
which this federal Court has subject matter jurisdiction.
To the extent plaintiff seeks to invoke the diversity jurisdiction of the Court under 28
U.S.C. § 1332(a), the complaint reveals such jurisdiction is lacking. In order for diversity
jurisdiction pursuant to § 1332(a) to lie, the citizenship of the plaintiff must be “diverse from the
citizenship of each defendant” thereby ensuring “complete diversity.” Caterpillar Inc. v. Lewis,
519 U.S. 61, 68 (1996) (citing State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531 (1967));
see also Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North
American Res. Corp., 809 F. Supp. 546, 551 (S.D. Ohio 1992). In this case, both plaintiff and
defendant are citizens of Ohio. (See Doc. 1, Complaint at PageID 3, 5). The complaint does not
allege that the citizenship of plaintiff and defendant are diverse.
28 U.S.C. § 1332(a)(1).
Therefore, this Court lacks subject matter jurisdiction on the basis of diversity of citizenship over
any state law claims plaintiff may be alleging.
In addition, the Court is without federal question jurisdiction over the complaint. District
courts also have original federal question jurisdiction over cases “arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331. In order to invoke the Court’s federal
question jurisdiction pursuant to 28 U.S.C. § 1331, plaintiff must allege facts showing the cause
of action involves an issue of federal law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63
(1987). The undersigned is unable to discern from the facts alleged in the complaint any federal
statutory or constitutional provision that applies to give rise to an actionable claim for relief.
Finally, plaintiff has failed to state a claim under 42 U.S.C. § 1983. To state a § 1983
claim, plaintiff must allege (1) the deprivation of a right secured by the Constitution or laws of the
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United States, and (2) the deprivation was caused by a person acting under color of state law. See
Hines v. Langhenry, 462 F. App’x 500, 503 (6th Cir. 2011) (citing Boykin v. Van Buren Twp., 479
F.3d 444, 451 (6th Cir. 2007); Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). The complaint
includes no factual allegations suggesting that defendant Johnson, the sole named defendant, acted
under color of state law. “Providing information to the police, responding to questions about a
crime, and offering witness testimony at a criminal trial does not expose a private individual to
liability for actions taken ‘under color of law.’” Moldowan v. City of Warren, 578 F.3d 351, 399
(6th Cir. 2009) (citations omitted). See also Briscoe v. LaHue,460 U.S. 325, 329-30 (1983). Thus,
to the extent plaintiff alleges that defendant Johnson provided false or misleading testimony at
plaintiff’s criminal trial, that action in itself fails to show Johnson acted under color of state law
for purposes of a viable § 1983 claim.
IT IS THEREFORE RECOMMENDED THAT:
1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b).
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114
F.3d 601 (6th Cir. 1997).
NOTICE REGARDING OBJECTIONS
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,
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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).
Date: November 17, 2022
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
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