Harper v. Tuscarawas County Job & Family Services et al

Filing 11

REPORT AND RECOMMENDATIONS re 1 Complaint: The Magistrate Judge RECOMMENDS that the Court DISMISS Plaintiff's Complaint for failure to state a claim upon which relief may be granted. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/6/2014. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

HENRY N. HARPER,
Plaintiff,
Civil Action 2:13-cv-1100
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

TUSCARAWAS COUNTY JOB &
FAMILY SERVICES, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Henry N. Harper, a state inmate who is proceeding without the assistance of
counsel, brings this action against Tuscarawas County Job & Family Services; David W.
Haverfield, an attorney for Tuscarawas County Job & Family Services; and Jamie Grunder, a
social worker for Tuscarawas County. Plaintiff alleges that Defendant Grunder committed
perjury and that Defendant Haverfield attempted to cover up this perjury. It appears that
Plaintiff is further alleging that the purported actions of these Defendants violated his due
process rights. This matter is before the Court for the initial screen of Plaintiff’s Complaint
under 28 U.S.C. §§ 1915(e)(2) and 1915A 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); see also McGore v. Wrigglesworth, 114 F.3d
601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to

state a claim on which relief may be granted.
I.
According to Plaintiff’s Complaint, on August 18, 2012, Defendant Grunder instructed
the police to remove Plaintiff’s minor children from their mother, Tina Harper, and to place them
with the minor’s brother, Jacob Harper. On August 21, 2012, Defendant Grunder filed
complaint in the Court of Common Pleas Juvenile Court Division for Tuscarawas County, Ohio,
seeking temporary custody of Plaintiff’s minor children. In this state-court complaint, Defendant
Grunder alleged “upon information and belief” that Plaintiff’s children “are ABUSED,
NEGLECTED and/or DEPENDENT as defined in [Ohio Revised Code] Section 2151.03,
2151.031 and 2151.04.” (State-Court Compl. 1, ECF No. 1-1.) Defendant Grunder also alleged
that on August 19, 2012, Ms. Harper became intoxicated and locked her minor children outside
of her home in the middle of the night. (Id.) She further alleged that Ms. Harper had been
charged with child endangering. (Id.) The state-court complaint also contained allegations of a
“significant history of involvement with these children in Guernsey County involving numerous
complaints to children services and involvement with that entity.” (Id. at 2.) Noting that
Plaintiff was currently incarcerated and would not be released until the children had reached the
age of majority, Defendant Grunder sought temporary or permanent custody and that Plaintiff
and Ms. Harper be either temporarily or permanently divested of their parental rights. (Id.)
Defendant Haverfield notarized Defendant Grunder’s state-court complaint. In a September 19,
2012 hearing, Defendant Grunder asked the state court to dismiss the abuse count and strike the
paragraph concerning the August 19, 2012 incident from the state-court complaint.
In the instant action, Plaintiff asserts that Defendant Grunder committed perjury when
she alleged in the state-court complaint that Ms. Harper had been charged with child
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endangering. According to Plaintiff, Ms. Harper has never been arrested for child endangering
or for alcohol-related problems. Plaintiff maintains that Defendant Haverfield “is trying to cover
[up] the perjury by asking the [state court] to dismiss the abuse count and strike the entirety of
paragraph one” of the state-court complaint. He alleges that the filing of the state-court
complaint containing perjury violated his due process rights. Plaintiff seeks damages in the
amount of $2 million.
II.
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, however, “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, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

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Formerly 28 U.S.C. § 1915(d).
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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
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.,
727 F.3d 502, 503 (6th Cir. 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, Flagstar Bank, 727 F.3d at 504 (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
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1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
This lenient treatment, however, has limits; “‘courts should not have to guess at the nature of the
claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir. 2012) (quoting
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
III.
The Undersigned concludes that Plaintiff has failed to state a plausible federal claim. As
best the Court can discern, Plaintiff seeks to bring a federal due process claim and federal
perjury claims. The Undersigned recommends dismissal of the due process claim because
beyond declaring that his due process rights were violated, Plaintiff offers no factual support.
See Cook v. Cleveland State Univ., 13. F. App’x 320, 322 (6th Cir. 2001) (citing Kensu v. Haigh,
87 F.3d 172, 175–76 (6th Cir. 1996) (affirming trial court’s dismissal of the plaintiff’s
substantive and procedural due process claims because they were “conclusory and unsupported
by any facts or evidence”).
The Undersigned likewise recommends dismissal of Plaintiff’s civil perjury claims
because there is no cognizable civil cause of action for perjury. See Sutton v. United States
Small Bus. Admin., 92 F. App’x 112, 118 n.5 (6th Cir. 2003) (noting that 18 U.S.C. § 1621, the
federal criminal perjury statute, “is inapposite” to a civil action); Brown v. J.P. Morgan Chase
Bank, No. 12-10826, 2012 WL 1555418, at *3 (E.D. Mich. Apr. 30, 2012) (concluding that “18
U.S.C. § 1621 does not confer jurisdiction on this Court”); Young v. City of Columbus, No. 2:04cv-673, 2007 WL 107777, at *9 (S.D. Ohio Jan. 9, 2007) (noting that perjury is a criminal
offense and that the plaintiff could not bring a civil claim for perjury because Ohio law does not
recognize a civil cause of action for perjury).
IV.
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In sum, it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
PROCEDURE ON OBJECTIONS
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
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 [the 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)).

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IT IS SO ORDERED.

Date: January 6, 2014

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

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