Vehr v. Ohio Department of Parks Recreation Wildlife

Filing 3

ORDER and INITIAL SCREEN REPORT AND RECOMMENDATION re 2 Complaint: The Magistrate Judge RECOMMENDS that the Court DISMISS Plaintiff's Complaint. Objections to R&R due within fourteen (14) days of the date of this Report. Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/30/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SKYE H. VEHR,
Plaintiff,

Civil Action 2:13-cv-836
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

OHIO DEPARTMENT OF PARKS
RECREATION WILDLIFE,
Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Skye H. Vehr, a resident of Ohio who is proceeding without the assistance of
counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) Plaintiff’s
request to proceed in forma pauperis is GRANTED. All judicial officers who render services in
this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This matter is also
before the Court for the initial screen of Plaintiff’s Complaint as required by 28 U.S.C. §
1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or
any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2). Having performed the initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so “Congress recognized that ‘a litigant whose filing fees and court costs are assumed
by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, Section 1915(e) requires sua
sponte dismissal of an action upon a court’s determination that the action is frivolous or
malicious, or upon determination that the action fails to state a claim upon which relief may be
granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

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Formerly 28 U.S.C. § 1915(d).
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8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
--- F.3d ----, No. 12-2620, 2013 WL 4081909, at *1 (6th Cir. Aug. 14, 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). Further,
the Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th
Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

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II.
The entirety of Plaintiff’s Complaint against the Ohio Department of Parks Recreation
Wildlife reads as follows:
There was a lot of poison used on a certain wildlife rich area of border of the bike
path along the Olentangy[.] A lot of people use the nature there to rejuvenate
themselves this particular spot is known for work-of-mouth, sightings of a bear[.]
The path its area plants are now destroyed[.] The sickening effects of which
counter the intent of the bike path of the intent of the wetland park across the
river.
(Compl. 3, ECF No. 1-2.) She seeks injunctive relief and $1 billion in damages.
Plaintiff’s Complaint provides no factual content or context from which the Court could
reasonably infer that Defendant violated Plaintiff’s rights. Thus, she has failed to satisfy the
basic federal pleading requirements set forth in Rule 8(a). Twombly, 550 U.S. at 555. The
Undersigned, therefore, RECOMMENDS that Plaintiff’s Complaint be DISMISSED pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).
III.
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

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Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court’s denial of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).
IT IS SO ORDERED.

Date: August 30, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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