Siegler v. City of Columbus et al

Filing 4

REPORT AND RECOMMENDATION that re 1 MOTION for leave to proceed in forma pauperis be DENIED. Plaintiffs motion to seal 3 is GRANTED. Objections to R&R due by 10/26/2012. Signed by Magistrate Judge Norah McCann King on 10/09/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SARA ELIZABETH SIEGLER,
Plaintiff,
vs.

Civil Action 2:12-cv-472
Judge Marbley
Magistrate Judge King

CITY OF COLUMBUS, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff, who is proceeding without the assistance of counsel,
seeks to bring this action without prepayment of fees or costs under
28 U.S.C. § 1915(a).

Plaintiff’s motion to seal her application for

leave to proceed in forma pauperis, as well as attached Exhibits 1 and
2, is GRANTED.

The Clerk is DIRECTED to seal Doc. No. 1 and attached

Exhibits 1 and 2.
In her application for leave to proceed in forma pauperis, Doc.
No. 1, plaintiff represents that “all of [her] expenses are paid for
by Glenn D. Siegler.”

However, plaintiff does not “state the amount

that [she] received” as required by the Court’s form.

It also appears

that plaintiff may be the beneficiary of a trust, but it is unclear
whether or to what extent plaintiff may have received a distribution
from the trust.

Under these circumstances, plaintiff has not

established that she is financially unable to bear the costs of
initiating this action.

It is therefore recommended that plaintiff’s

application for leave to proceed in forma pauperis be denied but that
plaintiff be given the opportunity to supplement her application with
the required information.
However, it is also recommended that the claims asserted against

certain defendants be dismissed for failure to state a claim upon
which relief can be granted.
The tendered Complaint, attached to Doc. No. 1, seeks
declaratory, injunctive and monetary relief in connection with the
alleged wrongful denial of plaintiff’s application for housing
provided by the Columbus Metropolitan Housing Authority [“CMHA”].
Named as defendants are the City of Columbus, the CMHA, its attorney,
the Mayor of Columbus, the Governor of the State of Ohio and a former
co-worker of plaintiff and her husband.

Plaintiff invokes the Court’s

jurisdiction as a case arising under federal law with supplemental
state law claims.1
In a rambling 53-page pleading, plaintiff alleges that all
defendants but the former co-worker and her husband denied plaintiff
subsidized CMHA housing to which she was entitled and conspired to
commit housing discrimination, that all defendants engaged in
intentional and negligent infliction of emotional distress, and that
the former co-worker and her husband committed “improper enjoyment of
benefits (including government subsidized public housing and utility
bill payment),” Complaint, p. 41, and improperly received
representation by the Ohio Attorney General when plaintiff sued the
former co-worker in a separate action filed by her. See Siegler v. The
Ohio State University, et al., 2:11-cv-170 (S.D. Ohio).2
The Complaint fails to state a colorable claim for relief against

1

Plaintiff, a resident of Ohio, also invokes the Court’s diversity
jurisdiction, 28 U.S.C. § 1332, but the Court manifestly lacks diversity
jurisdiction because at least some of the defendants are also identified as
residents of Ohio.
2

The claims asserted by plaintiff against the former co-worker were
dismissed for failure to state a claim upon which relief can be granted.
Judgment, 2:11-cv-170. That judgment is now the subject of plaintiff’s
appeal.

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plaintiff’s former co-worker and her husband.

The Complaint does not

allege that these defendants denied plaintiff any right to which
plaintiff is entitled.

The mere fact that plaintiff believes that

they received benefits to which they were not entitled is simply
insufficient.
The Complaint also fails to state a claim against the City of
Columbus, its Mayor or the Governor of the State of Ohio.

The

Complaint contains no facts in support of any claim against the City
or its Mayor. Plaintiff alleges that she sent letters and emails to
the Governor in connection with her housing complaints. See, e.g.,
Complaint, pp 20, 21, 27, 33, 34.

Plaintiff specifically “sought

reimbursement for the monies her parents spent on her housing.” Id. at
38. She complains that she received no response from the Governor “who
serves as the Chief Executive Officer of the [S]tate of Ohio.”

Id.

However, it does not appear that the Governor is a proper defendant
under the Fair Housing Act, 42 U.S.C. § 3601 et seq.

Moreover,

liability of a government official under 42 U.S.C. § 1983 must be
based on “active unconstitutional behavior” and not on a mere failure
to act.

Combs v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002) citing

Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Finally, state
law claims against a state official cannot proceed in this Court
unless and until the Ohio Court of Claims has determined that the
state official is not entitled to civil immunity under O.R.C. § 9.86.
See O.R.C. § 2743.02(F); Haynes v. Marshall, 887 F.2d 700, 704 (6th
Cir. 1989)(state employees enjoy immunity from suit in a claim under
Ohio law); Johns v. University of Cincinnati Med. Assocs., 804 N.E.2d
19, 24 (Ohio 2004).
Finally, the Complaint fails to state a colorable claim against
defendant John Waddy, who is identified as counsel for defendant CMHA.

3

First, a private attorney does not act under color of state law for
purposes of 42 U.S.C. § 1983.
(1981).

Polk county v. Dodson, 454 U.S. 312

As with the defendant Governor, moreover, plaintiff alleges

merely that she sent correspondence to this defendant but that she
received no response from him.

The Court can perceive no cause of

action against defendant Waddy arising from these facts.
It is therefore RECOMMENDED that plaintiff’s application for
leave to proceed in forma pauperis be denied, without prejudice to the
submission of an application that provides the information requested
by the form application.

It is also RECOMMENDED that defendants

Sarah Marie Nelson, Jason Brad Nelson, the City of Columbus, Mayor
Michael Coleman, Governor John Kasich and John Waddy, Esq., be
DISMISSED from the action but that the claims against defendant
Columbus Metropolitan Housing Authority be permitted to proceed upon
either the payment of the full filing fee or the submission of a
proper application for leave to proceed in forma pauperis.
Plaintiff’s motion to seal her application for leave to proceed
in forma pauperis, as well as attached Exhibits 1 and 2, is GRANTED.
The Clerk is DIRECTED to seal Doc. No. 1 and attached Exhibits 1 and
2.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

Response to objections must be

filed within fourteen (14) days after being served with a copy
thereof.

F.R. Civ. P. 72(b).

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The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation
of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United
States v. Walters,

638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
October 9, 2012
Date

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