Winkle v. Flaker et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 1-29-13. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK R. WINKLE,
Plaintiff,
vs.

Civil Action 2:12-cv-1014
Judge Smith
Magistrate Judge King

WILLIAM FLAKER, et al.,
Defendants.
OPINION AND ORDER
Plaintiff Mark Winkle, an Ohio resident, has been granted leave
to proceed in forma pauperis.
Doc. No. 2.

Order to Proceed in Forma Pauperis,

On December 5, 2012, upon initial screen of the Complaint

pursuant to 28 U.S.C. § 1915(e)(2), the United States Magistrate Judge
recommended that the action be dismissed for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be
granted.

Report and Recommendation, Doc. No. 4, p. 3.

On December 7, 2012, plaintiff filed a Motion for Leave to File
an Amended Complaint (“Plaintiff’s First Motion to Amend”), Doc. No.
5, seeking to change the name of defendant Mark Harmon to Joshua
Harmon.

Plaintiff also filed a Request for Service, Doc. No. 6, on

that same date.
On December 18, 2012, plaintiff filed objections to the Report
and Recommendation (“Plaintiff’s Objections”), Doc. No. 8.

In his

objections, plaintiff argues that he adequately stated numerous
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claims, but he nevertheless asks to further amend the Complaint to
cure the pleading deficiencies noted in the Report and Recommendation.
See Plaintiff’s Objections, p. 1.

On that same date, plaintiff filed

a Motion for Leave to File an Amended Complaint (“Plaintiff’s Second
Motion to Amend”), Doc. No. 9.

The text of the proposed second

amended complaint is incorporated in Plaintiff’s Objections.

See

Plaintiff’s Objections, pp. 1-11.
The Complaint, Doc. No. 3, names 11 defendants, all of whom are
identified as Ohio residents.

On December 26, 2012, defendant City of

Springfield and Joshua Harmon, who is a named defendant in the first
proposed amended complaint but not in the original Complaint, filed a
Response to Plaintiff’s Objections, Doc. No. 13, a response to
Plaintiff’s Second Motion to Amend, Doc. No. 14, and a Motion to
Dismiss, Doc. No. 15.

Defendant City of Springfield and Joshua Harmon

oppose plaintiff’s motions to amend, arguing that amendment would be
futile.

See Doc. Nos. 13-15.

On January 14, 2013, plaintiff filed a

Rebuttal to Defendant City of Springfield’s Response to Plaintiff’s
Objections to Report and Recommendation of Magistrate [sic] King, Doc.
No. 16.
I.

Plaintiff’s Motions to Amend
A.

Standard

Plaintiff’s motions to amend are governed by Rule 15(a) of the
Federal Rules of Civil Procedure, which provides that a “court should
freely give leave [to amend] when justice so requires.”
P. 15(a)(2).

Fed. R. Civ.

“The thrust of Rule 15 is to reinforce the principle
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that cases should be tried on their merits rather than the
technicalities of pleadings.”

Tefft v. Seward, 689 F.2d 637, 639 (6th

Cir. 1982) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)).

The

grant or denial of a request to amend a complaint is left to the broad
discretion of the trial court.
F.2d 1119, 1130 (6th Cir. 1990).

Gen. Elec. Co. v. Sargent & Lundy, 916
In exercising its discretion, the

trial court may consider such factors as “undue delay, bad faith or
dilatory motive on the part of a movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment [and] futility
of the amendment.”

Foman v. Davis, 371 U.S. 178, 182 (1962).

“A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”

Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing
Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83
(6th Cir. 1993)).

A motion to dismiss under Rule 12(b)(6) attacks the

legal sufficiency of the complaint.

See Roth Steel Prods. v. Sharon

Steel Co., 705 F.2d 134, 155 (6th Cir. 1983).

In determining whether

dismissal on this basis is appropriate, a complaint must be construed
in the light most favorable to the plaintiff, and all well-pleaded
facts must be accepted as true.

See Bower v. Fed. Express Corp., 96

F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.
Supp. 734, 738 (S.D. Ohio 1994).

The United States Supreme Court has

explained that “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations
3

in the complaint.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

However, a plaintiff’s claim for relief “requires more than

labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”

Id. at 555.

“Factual allegations

must be enough to raise a right to relief above the speculative
level[.]”

Id.

Accordingly, a complaint must be dismissed – and a

motion for leave to amend a complaint must be denied – if the
complaint or proposed amended complaint does not plead “enough facts
to state a claim to relief that is plausible on its face.”

Id. at

570.
B.

Discussion

The second proposed amended complaint asserts 11 claims against
11 defendants.1

Many of plaintiff’s claims revolve around plaintiff’s

lease and occupancy of an apartment in Springfield, Ohio, from
defendants William Flaker and Terry Flaker; plaintiff also appears to
complain about terms and conditions of his current lease of premises
in Athens, Ohio, from defendants Leslie and Roseanne Takacs.
Plaintiff’s Objections.

All of the claims purport to state a claim

arising under federal law.
Plaintiff’s first claim alleges that the apartment he rented was
in need of repairs, which William and Terry Flaker refused to
1

The second proposed amended complaint alleges significantly more
facts than the first proposed amended complaint, which seeks only to
change the name of a single defendant. The Court will therefore refer
to the facts alleged in the second proposed amended complaint. The
second proposed amended complaint does not provide a case caption
listing the identities of the plaintiff and defendants; it appears to
assert claims against the defendants listed in the first proposed
amended complaint.
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complete, so he sent numerous letters to the City of Springfield,
Ohio, and to Joshua Harmon, the Director of Code Enforcement for the
City of Springfield, “requesting that Code Enforcement inspect both
buildings and order repairs.”

Id.

The City of Springfield and

Joshua Harmon allegedly “took no action” and failed to enforce the
“Ohio Building Code.”

Id. at pp. 2-3.

In response to plaintiff’s

repair requests, defendants William and Nicholas Flaker allegedly
stated that they “ could not be forced to make repairs’ as
Flaker ‘had friends at City Hall’ in Springfield, Ohio.”

illiam
Id.

William

Flaker also allegedly said that the code enforcement rules were
different for him because he was a “licensed electrician” who knew
people at “Code Enforcement.”

Id.

Plaintiff alleges that these

actions “establish[] a two tier system of compliance” in violation of
the Fourteenth Amendment right to equal protection by creating classes
of people based on whether they have a contractor’s license or
“friends at City Hall.”

Id. at p. 3.

The second proposed amended complaint fails to state a Fourteenth
Amendment equal protection claim.

First, plaintiff’s allegation that

the City of Springfield and its Director of Code Enforcement “took no
action” in response to his letters, see id. at pp. 2-3, is simply
insufficient to state any claim against them.

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)).
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Second, plaintiff

does not claim membership in a protected class or allege that any
governmental agent or agency treated him differently because of his
membership in a protected class or in connection with the exercise of
his constitutionally protected rights.

Plaintiff’s first claim

therefore fails to state a Fourteenth Amendment equal protection
claim.

See Loesel v. City of Frankenmuth, 6 2 F. d

52,

61 (6th Cir.

2012) (“ The Equal Protection Clause prohibits discrimination by
government which either burdens a fundamental right, targets a suspect
class, or intentionally treats one differently than others similarly
situated without any rational basis for the difference.’”) (quoting
Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681-82 (6th Cir.
2011)).
Plaintiff’s remaining ten claims relate to plaintiff’s
allegations that he was “defrauded” out of a security deposit (claim
2), was subjected to “threats of bodily harm” (claim 3), was a victim
of a conspiracy to commit “a continuous pattern of invasion of
privacy” (claim

), of a conspiracy and interference with contract

(claim 5), of a conspiracy and harassment “through excessive noise”
(claim 6), was a victim of fraud in misrepresenting the condition of
an apartment (claim 7), was subjected to “telephone harassment” to
interfere with a contract (claim 8), was subjected to a breach of
contract for failure to maintain a leased premise (claim 9), was
forced to rent a Post Office Box by interfering with the delivery of
mail (claim 10), and was subjected to harassment and lease violations
as a “means of sex discrimination in violation of plaintiff’s civil
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rights in an attempt to force the plaintiff out of his apartment”
(claim 11).

Plaintiff’s Objections, pp. 3-10.

Each claim concludes

with an allegation that the facts alleged constitute a violation of
the Fair Housing Act, 42 U.S.C. § 3601 et seq.
“The Fair Housing Act prohibits discrimination in the sale or
rental of housing because of

race, color, religion, sex, familial

status, or national origin.’”

Hamad v. Woodcrest Condo. Ass’n, 328

F.3d 224, 230 (6th Cir. 2003) (quoting 42 U.S.C. § 3604).

See also

Graoch Assocs. #33, L.P. v. Louisville/Jefferson Cnty. Metro Human
Relations Comm’n, 508 F. d

66,

71 (6th Cir. 2007) (“First, the

plaintiff must show a prima facie case by showing that he is a member
of a protected class, that he applied to and was qualified to rent or
purchase certain housing, that he was rejected, and that the housing
remained available thereafter.”).

The prohibition extends to, inter

alia, the terms, conditions, privileges, or provision of services or
facilities in connection with a sale or rental of a dwelling.

42

U.S.C. § 3604(b).
The proposed second amended complaint alleges that plaintiff has been
subjected to discrimination on the basis of his sex in connection with
his lease of the two premises.

Plaintiff has not, however, alleged

actual facts that constitute sex discrimination under the Fair Housing
Act.

For example, plaintiff has not alleged that any defendant

refused to rent him a dwelling on the basis of sex or that he was
discriminated against in the terms, conditions, or the provisions of
services or facilities in connection with the rental of a dwelling
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because of his sex.

In fact, plaintiff seems to allege that most of

his fellow tenants at the Springfield premises were treated like
plaintiff, regardless of their sex.

See Plaintiff’s Objections, p. 2

(referring to the denial of repairs requested by or on behalf of all
tenants), p. 3 (alleging that

illiam and Terry Flaker “have defrauded

nearly every other tenant that they have rented to in the past two
years since plaintiff began renting an apartment from them”), p. 5
(“ illiam Flaker and Nicholas Flaker would place inspection notices in
the mailboxes of each tenant . . . .”).
Plaintiff does allege that three female tenants were accorded
preferential treatment, but the specific allegations in this regard
are also insufficient to state a claim for sex discrimination.
Plaintiff alleges that defendant Angelita Lopez, whom plaintiff
describes as a Mexican-American female resident “spy” employed by
illiam Flaker, “received preferential treatment due to her gender”
and race.

Id. at pp. 4-5.

However, plaintiff also alleges that the

“preferential treatment” received by Angelita Lopez was a direct
result of her renting an “apartment under a (HUD) Housing and Urban
Development Section 8 lease.”

Id. at 4.

Plaintiff also alleges that

Leslie and Roseanne Takacs, apparently his current landlords, failed
to evict defendants Heidi and Holly Delong “on the basis of their
gender (female) and their familial status (Heidi Delong has a son).”
Id. at p. 6.

However, plaintiff does not allege that he has been

evicted from his current apartment, nor does he allege that he has
been sanctioned for engaging in behavior tolerated in the Delong
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defendants. Plaintiff’s allegations, even taken as true, are simply
insufficient to state a claim for sex discrimination under the Fair
Housing Act.
In short, plaintiff has not alleged, apart from threadbare,
conclusory recitals, that he has been subjected to sex discrimination
in violation of the Fair Housing Act.

The proposed amendments

therefore fail to state a colorable claim of discrimination under the
Fair Housing Act.
Because the proposed amended complaints fail to state a claim for
relief arising under federal law, the Court lacks subject matter
jurisdiction of the action under 28 U.S.C. § 1331.

Because the

parties are not of diverse citizenship, the Court also lacks subject
matter jurisdiction over any claim arising under state law.2
U.S.C. § 1332.

See 28

See also United Mine Workers v. Gibbs, 383 U.S. 715

(1966) (“Certainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”).

Accordingly, plaintiff’s

motions to amend the Complaint, Doc. Nos. 5, 9, are futile, and thus,
are DENIED.
II.

Plaintiff’s Objections
The United States Magistrate Judge recommended that the action be

dismissed for lack of subject matter jurisdiction and for failure to

2

Apparently, plaintiff intends to assert such state law claims as
invasion of privacy, defamation, harassment, tortious interference and
violation of Ohio’s Landlord Tenant Laws.
9

state a claim upon which relief can be granted.

Report and

Recommendation, p. 3.
When a magistrate judge issues a report and recommendation
regarding a dispositive pretrial matter, the district court must
review de novo any portion of the report and recommendation to which a
specific objection is made.

Fed. R. Civ. P. 72(b); 28 U.S.C. §

636(b); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001).
In determining whether dismissal is appropriate for failure to state a
claim on which relief may be granted, the complaint must be construed
in the light most favorable to the plaintiff, and all well-pleaded
facts must be accepted as true.
F. Supp. at 738.

See Bower, 96 F.3d at 203; Misch, 896

Dismissal is appropriate if the complaint does not

plead “enough facts to state a claim to relief that is plausible on
its face.”

Twombly, 550 U.S. at 570.

Moreover, a court may, on its

own motion, dismiss a complaint for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

Hagans v. Lavine,

415 U.S. 528, 536-37 (1974); Apple v. Glenn, 183 F.3d 477, 479 (6th
Cir. 1999).
In his objections to the Report and Recommendation, plaintiff
maintains that the Complaint adequately sets forth numerous claims and
that, in any event, the proposed amended complaint would cure any
pleading deficiencies noted in the Report and Recommendation.
Plaintiff’s Objections, p. 1.

See

As discussed supra, plaintiff’s

proposed amendments to the Complaint are futile because they fail to

10

state a federal claim upon which relief can be granted and because the
Court lacks subject matter jurisdiction.
Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a
careful de novo review of the Report and Recommendation and
Plaintiff’s Objections.

For the foregoing reasons and for the reasons

detailed in the Magistrate Judge's Report and Recommendation,
Plaintiff’s Objections, Doc. No. 8, are OVERRULED.

The Report and

Recommendation, Doc. No. 4, is ADOPTED and AFFIRMED.
In light of the foregoing, plaintiff’s Request for Service, Doc.
No. 6, is DENIED as moot.

The City of Springfield, Ohio and Joshua

Harmon’s Motion to Dismiss, Doc. No. 15, is DENIED as moot.
WHEREFORE, based on the foregoing, Plaintiff’s First Motion to
Amend, Doc. No. 5, is DENIED.
Doc. No. 9, is DENIED.
is DENIED as moot.

Plaintiff’s Second Motion to Amend,

Plaintiff’s Request for Service, Doc. No. 6,

The City of Springfield, Ohio and Joshua Harmon’s

Motion to Dismiss, Doc. No. 15, is DENIED as moot.
Objections, Doc. No. 8, are OVERRULED.
Doc. No. 4, is ADOPTED and AFFIRMED.

Plaintiff’s

The Report and Recommendation,

This action is hereby DISMISSED

for lack of subject matter jurisdiction and for failure to state a
claim upon which relief can be granted.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

s/George C. Smith______
George C. Smith, Judge
United States District Court

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