Siegler v. City of Columbus et al

Filing 7

ORDER OVERRULING 5 Plaintiff's Objections, The Report and Recommendation, Doc. No. 4 , is MODIFIED to include the dismissal of the claims against defendant City of Columbus. In all other respects, the Report and Recommendation is ADOPTED and AFFIRMED. The claims against defendants City of Columbus, Mayor Michael Coleman, John Waddy, Ohio Governor John Kasich, Jason Brad Nelson and Sarah Marie Nelson are DISMISSED for failure to state a claim upon which relief may be granted. Plaintiff is DIRECTED to pay the full $350.00 filing fee within thirty (30) days. Plaintiff is ADVISED that her failure to do so will result in the dismissal of the action for failure to prosecute.. Signed by Judge Algenon L. Marbley on 11/27/2012. (cw)

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

SARA ELIZABETH SIEGLER,
Plaintiff,

vs.

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

CITY OF COLUMBUS, et al.,
Defendants.

OPINION AND ORDER
Plaintiff sought to initiate this action without prepayment of
fees or costs.

Plaintiff’s application for leave to proceed in forma

pauperis, Doc. No. 1, indicates that “all of [plaintiff’s] expenses
are paid for by Glenn D. Siegler.”

However, the application does not

specify the amounts received by plaintiff as required by the Court’s
form.

On October 9, 2012, the Magistrate Judge issued a Report and

Recommendation, Doc. No. 4, recommending that plaintiff’s application
for leave to proceed in forma pauperis be denied without prejudice to
supplementation.

Specifically, the Magistrate Judge concluded that

plaintiff had not established that she is financially unable to bear
the costs of initiating this action because she did not clearly state
the amount she received from Glenn D. Siegler and because it was
unclear whether or to what extent plaintiff may have received a
distribution from a trust.

Report and Recommendation, p. 1.

The

Magistrate Judge also recommended that the claims against all
defendants except defendant Columbus Metropolitan Housing Authority
[“CMHA”] be dismissed for failure to state a claim upon which relief

can be granted.

Id. at 2-4.

Plaintiff has filed timely objections.

Pro Se Appellant’s Objections to the Report and Recommendation
(“Plaintiff’s Objections”), Doc. No. 5.

For the reasons that follow,

Plaintiff’s Objections are OVERRULED.
Plaintiff asserts a number of assignments of error on the part of
the Magistrate Judge.

Each will be discussed in turn.

Plaintiff’s first assignment of error contends that the
Magistrate Judge erred in recommending the denial of plaintiff’s
application for leave to proceed in forma pauperis because “this Court
previously granted Siegler leave to proceed [in forma pauperis] for
case 2:11-cv-170 (Siegler v. The Ohio State University, et al.).”
Plaintiff’s Objections, p. 3.

Plaintiff argues that her “financial

status has not changed in terms of accessible monies” since she was
granted leave to proceed in forma pauperis in 2011.

Id. at p. 10.

Plaintiff has also submitted a copy of her 2011 Form 1040, which
reflects an adjusted gross income in excess of $75,000.

Under these

circumstances, plaintiff has not established that she is financially
unable to bear the costs of initiating this action.

Plaintiff’s first

assignment of error is therefore without merit.
Plaintiff’s second assignment of error relates to the observation
by the Magistrate Judge that plaintiff “invokes the Court’s
jurisdiction as a case arising under federal law with supplemental
state law claims.”

Report and Recommendation, p. 2.

Plaintiff

contends that the Magistrate Judge erred in “not acknowledging that
Siegler invoked several statutes (Article III § 2 of the Constitution,
28 U.S.C. § 1332(a) and (a)(1), 28 U.S.C. § 1367 and 28 U.S.C.
1391(a)(1) and (2)) in her complaint with regard to th[e] jurisdiction
and venue of this Court.”

Plaintiff’s Objections, p. 3.

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Specifically, plaintiff argues that “the Court erred in not
classifying this case as one arising under Constitutional and federal
laws with supplemental state law claims.”
objection is frivolous.

Id. at p. 14.

Plaintiff’s

This claims asserted by plaintiff vest this

Court with federal question jurisdiction under 28 U.S.C. § 1331 and
with supplemental jurisdiction under 28 U.S.C. § 1367.

To the extent

that plaintiff intends to reassert her invocation of diversity
jurisdiction, 28 U.S.C. § 1332, the Court lacks diversity jurisdiction
because, as the Magistrate Judge noted, Report and Recommendation, p.
2 n.1, plaintiff and at least one defendant are residents of Ohio.
Plaintiff’s third assignment of error contends that the
Magistrate Judge erred in “stating that Siegler failed to articulate
claims upon which relief may be granted by this Court against the
defendants in addition to colorable claims for relief against Sarah
Marie Nelson, Jason Brad Nelson and John Waddy in the complaint.”
Plaintiff’s Objections, p. 3.

Plaintiff argues that defendants Sarah

Nelson and Jason Nelson received representation by the Ohio Attorney
General’s office in violation of O.R.C. § 109.361 and that they
committed fraud under 18 U.S.C. § 1001.
19-20.

Plaintiff’s Objections, pp.

Plaintiff has not alleged that defendants Sarah Nelson or

Jason Nelson denied plaintiff any right to which she is entitled.
Moreover, plaintiff has no standing to enforce 18 U.S.C. § 1001, which
is a criminal statute.

See Am. Postal Workers Union v. Indep. Postal

System of Am., 481 F.2d 90 (6th Cir. 1973).

Plaintiff has therefore

failed to state a colorable claim against defendants Sarah and Brad
Nelson.
As to plaintiff’s claims against Columbus Mayor Coleman, Attorney
John Waddy, and Ohio Governor Kasich, plaintiff argues that they

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“fail[ed] or refus[ed] to take affirmative steps in order to prevent
future instances of discriminatory housing practices as well as to
eliminate unlawful practices by the defendants, their agents, their
employees and/or their successors.”

Plaintiff’s Objections, p. 17.

First, defendant Waddy, as counsel for defendant Columbus Metropolitan
Housing Authority (“CMHA”), does not act under color of state law for
purposes of 42 U.S.C. § 1983.
324-25 (1981).

See Polk Cnty. v. Dodson, 454 U.S. 312,

Further, plaintiff’s allegation that she sent

correspondence to defendant Waddy but did not receive a response, see
Complaint, pp. 20-22, is simply insufficient to state any claim
against him.

Plaintiff’s similar allegations against Governor Kasich,

see id. at pp. 20-21, 27, 33-34, are similarly insufficient to state a
claim against the Governor.

These allegations are not based on

“active unconstitutional behavior,” as required for liability of a
government official under 42 U.S.C. § 1983.

See Combs v. Wilkinson,

315 F.3d 548, 554 (6th Cir. 2002) (citing Bass v. Robinson, 167 F.3d
1041, 1048 (6th Cir. 1999)).

Moreover, the Governor of the State of

Ohio is not a proper defendant under the Fair Housing Act, 42 U.S.C. §
3601 et seq.

In addition, plaintiff’s state law claims against this

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).

As

to defendant Mayor Coleman, plaintiff alleges no facts whatsoever in
support of her claims against him.

Plaintiff has therefore failed to

state a colorable claim against defendants Mayor John Waddy, Governor
John Kasich and Mayor Coleman.
As to plaintiff’s claims against the City of Columbus, plaintiff
argues that it

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may be held liable under 42 U.S.C. § 1983 for failing to
enforce local policy that requires public housing recipients,
such as Sarah Nelson and Jason Nelson, to perform community
service. Moreover, the City of Columbus should be held liable
under 42 U.S.C. § 1983 for CMHA’s failing to interview Siegler
after she submitted her public housing application via
facsimile as is local policy/custom.
Plaintiff’s Objections, p. 17.

Although the Report and Recommendation

does not address plaintiff’s claims against the City of Columbus, this
Court concludes that plaintiff has failed to state a colorable claim
against the City.

First, the Complaint contains no facts in support

of any claim against the City of Columbus.

To the extent that

plaintiff’s claims against the City of Columbus are based on a theory
of respondeat superior for CMHA’s actions, liability for
constitutional violations does not attach vicariously to municipal or
county entities.

See Monell v. Dep't of Social Servs., 436 U.S. 658

(1978); Molton v. City of Cleveland, 839 F.2d 240, 246 (6th Cir.
1988).

To the extent that plaintiff’s claims against the City of

Columbus are based on a policy, custom, or conspiracy, see Complaint,
p. 40, the Complaint contains no factual allegations in support of the
conclusory allegations of liability.

Plaintiff has therefore failed

to state a colorable claim against the City of Columbus.
Plaintiff also contends that the Magistrate Judge erred in
“stating a fourteen day deadline . . . for Siegler to file her
response to the Report and Recommendation, . . .

as the rules provide

for ten days for Siegler’s objections to be filed.”
Objections, p. 3.

Plaintiff’s

Federal Rule of Civil Procedure 72 provides that

“[w]ithin 14 days after being served with a copy” of a report and
recommendation, “a party may serve and file specific written
objections to the proposed findings and recommendations.”

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Fed. R.

Civ. P. 72(b).

Plaintiff’s objection in this regard is wholly

frivolous.
Plaintiff also contends that the Magistrate Judge erred in “not
properly serving the Report and Recommendation upon the defendants as
well as upon Siegler before filing” under Fed. R. Civ. P. 5(d).
Plaintiff’s Objections, p. 3.

Plaintiff is, to date, the only party

properly before the Court and it is clear that a copy of the Report
and Recommendation was provided to her.

Plaintiff’s assignment of

error in this regard is therefore without merit.
Plaintiff next contends that the Magistrate Judge “did not have
authority to grant and/or deny the seal motion and supporting
memorandum, or Document 3, as she did within the Report and
Recommendation.”

Plaintiff’s Objections, p. 3.

The Magistrate Judge

granted plaintiff’s Motion to Seal for Privacy Protection, Doc. No. 3,
in which plaintiff sought to seal her application for leave to proceed
in forma pauperis and two attachments.
1.

Report and Recommendation, p.

Plaintiff’s Motion to Seal for Privacy Protection is a non-

dispositive matter that the Magistrate Judge has authority to
consider.

See Eastern Division Order 91-3(I)(D).

Plaintiff’s

assignment of error in this regard is therefore without merit.
Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a
careful de novo review of the Report and Recommendation and of
Plaintiff’s Objections.

For the foregoing reasons and for reasons

detailed in the Magistrate Judge's Report and Recommendation,
Plaintiff’s Objections, Doc. No. 5, are OVERRULED.

The Report and

Recommendation, Doc. No. 4, is MODIFIED to include the dismissal of

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the claims against defendant City of Columbus.

In all other respects,

the Report and Recommendation is ADOPTED and AFFIRMED.
The claims against defendants City of Columbus, Mayor Michael
Coleman, John Waddy, Ohio Governor John Kasich, Jason Brad Nelson and
Sarah Marie Nelson are DISMISSED for failure to state a claim upon
which relief may be granted.
If plaintiff intends to pursue this action, she is DIRECTED to
pay the full $350.00 filing fee within thirty (30) days.

Plaintiff is

ADVISED that her failure to do so will result in the dismissal of the
action for failure to prosecute.

s/Algenon L. Marbley
Algenon L. Marbley
United States District Judge

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