Winkle v. Flaker et al

Filing 4

REPORT AND RECOMMENDATION that the action be dismissed re 3 Complaint. Objections to R&R due by 12/24/2012. Signed by Magistrate Judge Norah McCann King on 12/05/12. (rew)

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.

REPORT AND RECOMMENDATION
Plaintiff has been granted leave to proceed in forma pauperis. This
matter is now before the Court for the initial screen of the Complaint
required by 28 U.S.C. § 1915(e)(2), which requires that a court dismiss
such a case if it determines, inter alia, that the action fails to state
a

claim

on

which

1915(e)(2)(B)(ii).

relief

may

be

granted.

.

.

.”

28

U.S.C.

§

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 determining whether a complaint states a claim upon which relief
can be granted, a court must construe the complaint in the light most
favorable to the plaintiff, accept all factual allegations as true and
determine whether the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). However, a plaintiff must provide more than

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

Id. at 555.

The Complaint filed in this action names 11 defendants, all of whom
are identified in the Complaint as residents of Ohio. Although the Court
surmises that plaintiff’s claims relate in some respect to leased
premises, plaintiff does not specify his relationship with any of the
named defendants. Moreover, the 11 claims asserted against the defendants
are supported by so little factual support as to provide no notice to
defendants of the actual claims against them.

For example, the first

claim alleges that certain defendants, including an employee of the Code
Enforcement Division of the City of Springfield, Ohio, “conspired to
interfere with plaintiff’s Fourteenth Amendment right of Equal Treatment
under the law by failing to insure his safety as a tenant at 736 E. High
Street, Apt. 5 in Springfield, Ohio.”

Complaint, Doc. No. 3, p. 3.

Similarly, the Complaint alleges that “plaintiff’s [sic] William Flaker,
Nicholas

Flaker,

and

Angelita

Lopez

conspired

to

and

committed

a

continuous pattern of invasion of privacy against the plaintiff from
October 1, 2010 to August 2, 2012.”

Id.

The Complalint further alleges

that “plaintiff [sic] william Flaker, Holly Delong, Heidi Delong, and
Roseanne Takacs have consistently conspire [sic] to and interfered with
the performance of plaintiff’s contract between himself and defendants
Leslie and Roseanne Takacs.”

Id.

Under these circumstances, the Court concludes that the Complaint
fails to state a claim upon which relief can be granted.
Moreover, only the first claim, alleging the interference “with
plaintiff’s Fourteenth Amendment right of Equal Treatment under the law
by failing to insure his safety as a tenant . . . ,” purports to state

2

a claim arising under federal law.

However, plaintiff does not claim

membership in any class nor does he allege that any governmental agent
or agency treated him differently because of his membership in any class
or in connection with the exercise of his constitutionally protected
rights.

That claim therefore fails to state a colorable claim of the

denial of equal protection.

See TriHealth, Inc. V. Bd. Of Comm’rs,

Hamilton county, Ohio, 430 F.3d 783, 788 (6th Cir. 2005)(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”).

Because

plaintiff has failed 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 claims arising
under state law. See 28 U.S.C. § 1332.

See also United Mine Workers v.

Gibbs, 383 U.S. 715 (196)(where federal claim is dismissed before trial,
state law claims should ordinarily likewise be dismissed).
Under all these circumstances, it is 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.
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.
§636(b)(1); Fed. R. Civ. P. 72(b).

28 U.S.C.

Response to objections must be filed

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

3

Fed.

R. Civ. P. 72(b).
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 Fed’n of Teachers, Local
231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters,
F.2d 947 (6th Cir. 1981).

December 5, 2012
(Date)

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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