Epps v. United States of America et al

Filing 13

REPORT AND RECOMMENDATION- IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's motion for leave to file an amended complaint (Doc. 9 ) be DENIED. 2. Plaintiff's motion for default judgment (Doc. 11 ) be DENIED. 3. The Court certify pursuant to 28 U.S.C. § 1915(a) 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. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals.. Signed by Magistrate Judge Karen L. Litkovitz on 5/22/2023. (md)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:22-cv-00610-JPH-KLL Doc #: 13 Filed: 05/22/23 Page: 1 of 5 PAGEID #: 317

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ALICIA A. EPPS,
Plaintiff,
vs.
CARL LINDER, III, et al.,
Defendants.

Case No. 1:22-cv-610
Hopkins, J.
Litkovitz, M.J.
REPORT AND
RECOMMENDATION

Plaintiff, a resident of Cincinnati, Ohio, sues former City of Cincinnati and FC
Cincinnati officials and the United States of America. On December 21, 2022, the undersigned
sua sponte reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and
recommended that plaintiff’s complaint be dismissed as “duplicative of her previously filed
complaints against the same defendants.” (Doc. 6 at PAGEID 293-94). The Court stated:
Both complaints stem from the alleged demolition of public housing in the West
End neighborhood of Cincinnati to build a soccer stadium for FC Cincinnati, a
professional soccer organization. Plaintiff again alleges violations of her rights
under the Fair Housing Act and United States Constitution as a result of the
defendants’ alleged failure to replace public housing that was demolished for the
stadium construction. Therefore, plaintiff’s instant complaint, which is based
entirely on her previously litigated claims, should be dismissed under 28 U.S.C. §
1915(e)(2) as “frivolous or malicious.”
(Id. at PAGEID 294). The Report and Recommendation remain pending before the District
Judge.
This matter is now before the Court on plaintiff’s motion for leave to file an amended
complaint (Doc. 9) 1 and motion for default judgment (Doc. 11). For the reasons below, both
motions should be denied.

Plaintiff styles this motion as a one “for LEAVE to SUPPLEMENT AMENDED COMPLAINT.” (Doc. 9 at
PAGEID 307). No amended complaint pends before the Court; there is only plaintiff’s original complaint.
Therefore, the Court construes plaintiff’s motion as one for leave to supplement the original complaint.

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Plaintiff’s motion for leave to amend the complaint seeks to “change[] Titles from 28
[U.S.C.] § 1343(3) or 28 [U.S.C.] § 1331 [t]o 28 [U.S.C.] § 1983 giving this Court
jurisdiction” over “claim one.” (Id. at PAGEID 308). Plaintiff also seek to include a claim
involving her eviction. (Id.). As an initial matter, the Court notes that plaintiff is permitted to
amend her complaint even though a Report and Recommendation to dismiss her complaint is
pending. In LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013), the Sixth Circuit held
that “a district court can allow a plaintiff to amend his complaint even when the complaint is
subject to dismissal under the PLRA.” Still, the Court may deny leave to amend a complaint
where, as here, an amendment would be futile. See Williams v. City of Cleveland, 771 F.3d
945, 949 (6th Cir. 2014). Plaintiff’s proposed amendments would not allow her complaint to
survive and so the motion should be denied as futile.
First, replacing the statutory section 28 U.S.C. § 1343(a)(3) with 28 U.S.C. § 1983 does
nothing to save plaintiff’s complaint. Section 1343(a)(3) is the “jurisdictional counterpart” of
42 U.S.C. § 1983, which provides a cause of action for violating the Constitution or statutes of
the United States. See Chapman v. Houston Welfare Rts. Org., 441 U.S. 600, 615, 617-18
(1979). The undersigned’s previous recommended dismissal of the original complaint did not
rest on jurisdictional grounds involving § 1343(a)(3). Rather, the recommendation to dismiss
turned on the duplicative nature of plaintiff’s complaint, which alleged claims based on her
once litigated claims. As the undersigned explained, “An in forma pauperis complaint that
merely repeats pending or previously litigated claims may be considered abusive of the judicial
process and dismissed as malicious under the authority of 28 U.S.C. § 1915(e)(2)(B)(i).” (Doc.
6 at PAGEID 293, citing Crenshaw v. City of Cincinnati, No. 1:08-cv-570, 2008 WL 4137973,
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at *2 (S.D. Ohio Aug. 29, 2008) (and cases cited therein). Substituting 42 U.S.C. § 1983 for
28 U.S.C. § 1343(a)(3) does not change this result.
To the extent plaintiff seeks to amend her complaint to add a claim for her eviction, this
Court would lack jurisdiction over such a claim. Plaintiff does not allege any facts indicating
this Court has diversity jurisdiction under 28 U.S.C. § 1332(a) over the proposed claim. The
citizenship of plaintiff is not “diverse from the citizenship of each defendant” to ensure the
necessary “complete diversity” under § 1332(a). See 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 Coll., 385 F.2d 871, 872 (6th Cir. 1967). Nor has plaintiff alleged any
facts indicating the eviction claim involves an issue of federal law that is not duplicative of the
claim she previously asserted in this Court. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63
(1987). Therefore, amendment of the original complaint to include an eviction claim would be
futile.
Plaintiff’s motion for default judgment should also be denied. Plaintiff seeks default
judgment against all of the defendants on the ground they have failed to plead or otherwise
defend this action. See Fed. R. Civ. P. 55. The record does not reflect that summons were
served on defendants with a copy of the complaint as required by Fed. R. Civ. P. 4(c).
Therefore, the time for filing an answer has not yet begun as to any defendant. See Fed. R. Civ.
P. 12(a)(1)(A)(i) (a defendant must serve an answer within 21 days after being served with the
summons and complaint). Nor has the Court ordered service of process on any defendant
because a Report and Recommendation to dismiss plaintiff’s complaint is pending before the
District Judge. See Fed. R. Civ. P. 4(c)(3). Therefore, default judgment is not warranted at this
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time.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s motion for leave to file an amended complaint (Doc. 9) be DENIED.
2. Plaintiff’s motion for default judgment (Doc. 11) be DENIED.
3. The Court certify pursuant to 28 U.S.C. § 1915(a) 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. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,
803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277
(6th Cir. 1997).

Date: 5/22/2023

Karen L. Litkovitz, Magistrate Judge
United States District Court

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALICIA A. EPPS,
Plaintiff,

Case No. 1:22-cv-610
Hopkins, J.
Litkovitz, M.J.

vs.
CARL LINDER, III, 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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