Mann v. Costin et al

Filing 2

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis. Plaintiff's request to proceed in forma pauperis is GRANTED. It is RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure 12(h)(3) WITHOUT PREJUDICE to filing the state-law claims in state court. Objections to R&R due by 5/29/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/11/2015. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

NATHAN MANN,
Plaintiff,
Civil Action 2:15-cv-1724
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

DR. RICHARD COSTIN, et al.,
Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Nathan Mann, an Ohio resident who is proceeding without the assistance of
counsel, brings this state-law, medical malpractice action against Dr. Richard Costin, Dr.’s West
Hospital, and Dr. Elliott P. Feldman (collectively “Defendants”). 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 before the United States
Magistrate Judge for the initial screen of Plaintiff’s Complaint under 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 this action for failure to assert any claim over which this Court has subject
matter jurisdiction.

I.
Under 28 U.S.C. § 1915(e), the federal in forma pauperis statute, Courts must sua sponte
dismiss an action upon determining that an in forma pauperis complaint fails to state a claim on
which relief can be granted. Thus, a typical initial screen involves consideration of the merits of
the claims asserted. In this case, however, upon review of Plaintiff’s Complaint, the
Undersigned determines it is unnecessary to consider the merits of the state-law tort claims he
advances because this Court lacks subject matter jurisdiction to hear those claims. When the
face of the complaint provides no basis for federal jurisdiction, the Court may dismiss an action
as frivolous and for lack of subject matter jurisdiction under both 28 U.S.C. § 1915(e)(2)(B) and
Fed. R. Civ. P. 12(h)(3). Williams v. Cincy Urban Apts., No. 1:10-cv-153, 2010 WL 883846, at
*2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182 F.3d 916, 1999 WL 454880, at
*2 (6th Cir. June 22, 1999) (table)).
II.
According to the Complaint, Plaintiff presented to Dr. Feldman with complaints of
clotting in his groin area. Upon referral to Dr. Costin at Doctor’s West Hospital, Plaintiff was
diagnosed with a double hernia and advised to undergo surgery. Plaintiff appears to allege that
Dr. Costin improperly performed a double hernia surgery that was unsuccessful. He alleges that
as a result, he continues to suffer from serious pain.
None of Plaintiff’s allegations provide a basis for a claim over which this Court has
jurisdiction. The basic statutory grants of federal court subject-matter jurisdiction are contained
in 28 U.S.C. § 1331, which provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which
provides for ‘[d]iversity of citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501
(2006). Federal-question jurisdiction is invoked when a plaintiff pleads a claim “arising under”
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the federal laws or the United States Constitution. Id. (citation omitted). For a federal court to
have diversity jurisdiction pursuant to Section 1332(a), there must be complete diversity, which
means that each plaintiff must be a citizen of a different state than each defendant, and the
amount in controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).
Plaintiff’s state-law medical malpractice claims do not satisfy § 1331 because they do not
involve alleged violations of federal statutes or alleged deprivations of constitutional rights. Nor
do the remaining state-law claims satisfy § 1332(a) given that he advances them against Ohio
citizens. Because these claims provide no basis for federal jurisdiction, it is RECOMMENDED
that the Court DISMISS these claims pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule
of Civil Procedure 12(h)(3) WITHOUT PREJUDICE to filing in state court.
III.
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this
action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure 12(h)(3)
WITHOUT PREJUDICE to filing the state-law claims in state court.
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
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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 [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: May 11, 2015

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

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