Behr v. Behr

Filing 3

REPORT AND RECOMMENDATIONS granting 1 MOTION for Leave to Proceed in forma pauperis & recommending that this case be dismissed as frivolous and for failure to state a claim under 28 USC §1915(e)(2). Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 5/14/2013. (kk2)

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

:

Plaintiff,
v.

:
:

Case No. 2:13-cv-378

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Aaron Behr,
:
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Danielle Behr, a non-prisoner pro se litigant,
filed this action asking for leave to proceed in forma pauperis.
Ms. Behr qualifies financially for in forma pauperis status, so
her motion for leave to proceed (Doc. 1) is granted.

However,

the Court will recommend that Ms. Behr’s filing, construed as a
complaint, be dismissed as frivolous and for failure to state a
claim.
I.
Initially, the Court notes that Ms. Behr’s filing appears to
involve allegations relating to events in Richland County, Ohio.
Further, it appears from the civil cover sheet that the named
defendant, Aaron Behr, is a resident of Richland County, Ohio.
Venue is proper only in the judicial district where the defendant
resides, or in which the claim arose.

28 U.S.C. §1391(b).

In

this case, because Richland County is located in the Northern
District of Ohio, it would appear that venue is not proper in
this District.

Under typical circumstances, a district court has

the discretion to dismiss the case without prejudice to refiling
in the proper district or to transfer it to the proper district.
28 U.S.C. §1406(a).

However, a case may be dismissed pursuant to

28 U.S.C. §1915(e) where the claims are frivolous because a
transfer to the proper district would not be in the interest of

justice.

Fish v. Murphy, 22 Fed.Appx. 480, 481-82 (6th Cir.

2001); see also Caldwell v. Medical Council of California, 113
F.3d 1234 (6th Cir. 1997)(table); Colston v. Matthews, 2008 WL
1902211 (E.D. Mich. April 29, 2008).

Because, as set forth

below, the Court will recommend that this case be dismissed as
frivolous and for failure to state a claim, the Court declines to
transfer this case to the Northern District of Ohio.
II.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, “[t]he court shall dismiss the case if ... (B) the
action ... is frivolous or malicious [or] fails to state a claim
on which relief can be granted....”

The purpose of this section

is to prevent suits which are a waste of judicial resources and
which a paying litigant would not initiate because of the costs
involved.

See Neitzke v. Williams, 490 U.S. 319 (1989).

A

complaint may be dismissed as frivolous only when the plaintiff
fails to present a claim with an arguable or rational basis in
law or fact.

See id. at 325.

Claims which lack such a basis

include those for which the defendants are clearly entitled to
immunity and claims of infringement of a legal interest which
does not exist, see id. at 327-28, and “claims describing
fantastic or delusional scenarios, claims with which federal
district judges are all too familiar.”

Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992).

A complaint may not be

dismissed for failure to state a claim upon which relief can be
granted if the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

Pro se complaints are to be

construed liberally in favor of the pro se party.
Kerner, 404 U.S. 519 (1972).

See Haines v.

The Court is required to review Ms.

Behr’s filing under these standards.
II.
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The first issue raised by Ms. Behr’s filing is whether it
sets forth a valid basis for the Court to adjudicate her claims.
Federal courts are courts of limited jurisdiction.

Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

Accordingly,

if subject matter jurisdiction does not exist, a federal court
cannot adjudicate the action.

Ins. Corp. of Ireland v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

Ms. Behr’s

complaint does not contain a short and plain statement of the
grounds for jurisdiction as required by the federal rules of
pleading.

See Fed.R.Civ.P. 8(a)(1).

The Court notes, however,

that on her civil cover sheet, Ms. Behr has indicated that she is
bringing a civil rights action.

In light of this, and keeping in

mind the liberal construction afforded a pro se plaintiff’s
pleading, it may be that Ms. Behr intends federal question
jurisdiction as the basis for her complaint.
Ms. Behr’s filing appears to relate to some action taken by
the Richland County Court of Common Pleas through which she
contends she was denied due process of law and equal protection
of the law, and that she suffered gender discrimination.

Beyond

her bare statement to this effect on the page of her document
captioned as “Files: Affidavit of Facts and Truths,” the contents
of her filing are fairly characterized as ramblings regarding Ms.
Behr’s dissatisfaction with the American justice system and
lawyers.

There is some reference to her status as a debtor and a

secured party creditor, but beyond this, the Court is unable to
ascertain any factual allegations explaining how she was denied
due process, equal protection, or was discriminated against in
any way.

Moreover, although she has named Aaron Behr as a

defendant, there are no factual allegations in the complaint
relating to any action taken by him.
Initially, the Court is “not required to accept summary
allegations or unwarranted legal conclusions in determining
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whether a complaint states a claim for relief.”
22 Fed.Appx. at 482.

Fish v. Murphy,

Consequently, even affording Ms. Behr’s

filing the utmost liberal construction, and analyzing it under 42
U.S.C. §1983 based on her brief mention of constitutional
principles, she does not set forth any federal claim.

Section

1983 prohibits a state or local government official from
depriving a person of his or her constitutional rights.
Bros. v. Brooks, 436 U.S. 149, 155 (1978).

Flagg

In order to state a

claim for relief under §1983, the defendant or defendants must be
government officials or must otherwise have engaged in “state
action.”

Ms. Behr, however, has named only Aaron Behr as a

defendant.

As noted above, her filing does not include any

allegations directed to Mr. Behr, let alone allegations from
which this Court could conclude that he engaged in any state
action which would subject him to potential liability under
§1983.
Further, although Mr. Behr’s filing mentions the Richland
County Court of Common Pleas, the Court does not read it as
attempting to state a claim against that court.

Moreover, to the

extent the filing could be so construed, as a general rule,
judges are entitled to absolute immunity from civil liability
regardless of the consequences which follow from their judicial
acts.

“It is well-established that judges of courts of general

jurisdiction are immune from liability for their judicial acts
.... Except for acts in the ‘clear absence’ of jurisdiction,
judicial immunity is absolute.”

Sparks v. Kentucky Character &

Fitness Committee, 818 F.2d 541, 542 (6th Cir. 1987), vacated,
484 U.S. 1022, 108 S.Ct. 744, 98 L.Ed.2d 757 (1988), aff'd on
reconsideration, 859 F.2d 428 (6th Cir.1988), citing Bradley v.
Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871); Stump v.
Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978);
King v. Love, 766 F.2d 962 (6th Cir.), cert. denied 474 U.S. 971,
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106 S.Ct. 351, 88 L.Ed.2d 320 (1985).

To the extent that any

claim may be directed to the common pleas court itself, a state
court is not a “person” subject to suit under § 1983, Mumford v.
Basinski, 105 F.3d 264, 268 (6th Cir. 1997), and enjoys Eleventh
Amendment immunity from suit under §1983 in federal court.
Foster v. Walsh, 864 F.2d 416 (6th Cir. 1988)(per curiam ).
Additionally, to the extent that Ms. Behr’s filing mentions
attorneys, there are no allegations from which the Court could
conclude that she is attempting to state a claim against any
specific attorney.

Even assuming that is her intention, private

attorneys are not considered to be state actors subject to
liability under §1983.

See, e.g., Border City Savings & Loan

Association v. Kennecorp Mortgage and Equities, Inc., 523 F.Supp.
190, 193 (S.D. Ohio 1981).
Similarly, Ms. Behr makes no allegations to support a gender
discrimination claim under federal law.

For all of these

reasons, although Ms. Behr gives brief mention to various federal
law concepts, there is simply no federal-law based claim alleged
here.
Absent a federal claim, the other possible basis for
jurisdiction would be diversity of citizenship to the extent that
Ms. Behr is attempting to assert any type of state law claim.
The relevant diversity jurisdiction statute, 28 U.S.C. §1332(a),
says that a federal court can exercise jurisdiction over “all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is
between– (1) citizens of different States ....”

In order for a

civil action to be “between ... citizens of different states” as
that phrase is used in §1332(a)(1), all of the plaintiffs must be
citizens of a state or states different from the state of
citizenship of any of the defendants.

See Caterpillar Inc. v.

Lewis, 519 U.S. 61, 68 (1996)(“The current general-diversity
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statute, permitting federal district court jurisdiction over
suits for more than $50,000 [now $75,000] ‘between ... citizens
of different States,’ 28 U.S.C. §1332(a)... applies only to cases
in which the citizenship of each plaintiff is diverse from the
citizenship of each defendant”).

Aaron Behr would appear to be a

citizen of the State of Ohio, as is Ms. Behr.

Consequently, the

Court lacks subject matter jurisdiction on the basis of diversity
of citizenship.
“Where there is no basis for federal jurisdiction apparent
on the face of the complaint, a court may dismiss the action as
frivolous and for lack of subject matter jurisdiction under 28
U.S.C. §1915(e)(2)(B) and Fed.R.Civ.P. 12(h)(3).”

Young v.

Scharf, 2007 WL 2123767 (S.D. Ohio July 20, 2007) at fn. 1 citing
Carlock v. Williams, 182 F.3d 916 (table), 1999 WL 454880 at *2
(6th Cir. June 22, 1999).

However, such a dismissal is not a bar

to refiling the action in state court.

Id.

III.
For all of these reasons, the motion for leave to proceed in
forma pauperis (#1) is granted.

Further, it is recommended that

this case be dismissed as frivolous and for failure to state a
claim under 28 U.S.C. §1915(e)(2).

Any state law claims should

be dismissed without prejudice to refiling in state court.

It is

further recommended that, should the suit be dismissed on this
ground, a copy of the complaint, this Report and Recommendation
and the dismissal order be mailed to the defendant.
IV.
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
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A judge

portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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