Burse et al v. Jenkins et al

Filing 14

ORDER AND REPORT AND RECOMMENDATIONS re 4 Complaint, filed by Burse Investment Management Group, Inc., Burse Fund I, Perrin Burse. The action may proceed on plaintiff Perrin Burse's claim of denial of access to the courts, and retalia tion in violation of the First Amendment to the United States Constitution. It is RECOMMENDED that the claims asserted on behalf ofplaintiffs Burse Investment Management Group, Inc., and Burse Fund I be dismissed, that the claim against defendant &qu ot;Post Master General U.S. Postal Service" be dismissed, and that all state law claims be dismissed without prejudice to renewal should the Ohio Court of Claims determine that the state employees are not entitled to immunity under O.R.C. § 9.86. Objections to R&R due by 2/1/2016. Signed by Magistrate Judge Norah McCann King on 1/15/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

PERRIN BURSE, et al.,
Plaintiffs,
Civil Action 2:15-cv-2992
Judge Watson
Magistrate Judge King

vs.
CHARLOTTE JENKINS, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION

Plaintiff, a state prisoner, brings this civil action asserting
claims arising out of alleged interference with legal proceedings
pursued by him.1 This matter is now before the Court for the initial
screen of the Complaint, ECF No. 4, required by 28 U.S.C. §§ 1915(e),
1915A.
A federal court must dismiss a case such as this, or a claim
asserted in the action, if it determines that the case or claim is
frivolous or 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. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. In conducting
this review, the Court recognizes that pro se pleadings are to be held
to a less stringent standard than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519 (1972); Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991).

However, even a pro se complaint must

1

This case is related to a similar case pursued by plaintiff, now with the
assistance of counsel, in this Court: Burse v. Robinson, 2:14-cv-403.

1

nevertheless plead facts that give rise to a valid cause of action.
Stanley v. Vining, 602 F.3d 767, 771 (6th Cir. 2010). In order to
survive dismissal for failure to state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570
(2007). “A claim has facial plausibility 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. (citing
Twombly, 550 U.S. at 556).

“[A] district court must (1) view the

complaint in the light most favorable to the plaintiff and (2) take
all well-pleaded factual allegations as true.” Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)(citing Gunasekera
v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)(citations omitted)). “But
the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett, 561 F.3d at 488 (quoting Columbia Natural
Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995).

Moreover, a

district court may, at any time, sua sponte dismiss a complaint for
lack of subject matter jurisdiction. Hagans v. Lavine, 415 U.S. 528,
536-37 (1974); Apple v. Glenn, 183 F.3d 477 (6th Cir. 1999).
The Complaint names as plaintiffs not only Perrin Burse, but also
Burse Investment Management Group, Inc., and Burse Fund I. The
Complaint does not, however, appear to assert any claims on behalf of
either Burse Investment Management Group, Inc., or Burse Fund I.
Moreover, to the extent that these entities are corporations, they can
proceed in this Court only through counsel authorized to practice in

2

this Court. See 28 U.S.C. § 1654 (“[P]arties may plead and conduct
their own cases personally or by counsel . . .”); Doherty v. American
Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984);
211 F.3d 1270 (Table)(6th Cir. May 3, 2000).

Parris v. Herman,

Plaintiff Perrin Burse is

not authorized to practice law before this Court. To the extent that
the Complaint purports to assert claims on behalf of Burse Investment
Management Group, Inc., and Burse Fund I, then, those claims cannot
proceed.
The Complaint asserts claims of denial of plaintiff Perrin
Burse’s constitutional right of access to the courts by reason of his
assignment to segregation from February 20, 2015 to March 3, 2015, and
by reason of limitations imposed on his legal materials. The First
Amendment to the United States Constitution guarantees to inmates a
right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346, 116
S.Ct. 2174, 135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 97
S.Ct. 1491, 52 L.Ed.2d 72 (1977); Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir.1996). Although the Constitution assures “adequate,
effective, and meaningful” access, Bounds, 430 U.S. at 822, the right
is nevertheless not unlimited.

For example, the right relates only to

challenges to the inmate’s conviction or sentence or to challenges to
the inmate’s conditions of confinement.

Lewis, 518 U.S. at 355.

Plaintiff specifies a number of lawsuits allegedly adversely impacted
by his assignment to segregation and the limitation on his legal
materials, it is not clear that all those lawsuits involved either a
challenge to his conviction or sentence or to his conditions of

3

confinement. To the extent that they did not, those lawsuits cannot
form the basis of plaintiff’s claimed denial of access to the courts.
The Complaint also names as a defendant “Post Master General U.S.
Postal Service,” but does not allege any misconduct on the part of
this person or entity.2 The claim against this defendant cannot
proceed.
The Complaint also appears to assert claims based on alleged
violations of state laws or regulations. State employees are vested
with immunity from civil liability under Ohio law for injuries caused
in the performance of the employee’s duties “unless the officer’s . .
. actions were manifestly outside the scope of his employment . . .,
or unless the officer . . . acted with malicious purpose, in bad
faith, or in a wanton or reckless manner.” O.R.C. § 9.86.

However, it

is the Ohio Court of Claims that has the “exclusive, original
jurisdiction to determine, initially, whether the officer . . . is
entitled to personal immunity under section 9.86. . . .” O.R.C. §
2743.02(F). Thus, a federal court cannot exercise supplemental
jurisdiction over state law claims against a state employee in his or
her individual capacity until such time as the cause of action is
recognized under state law, i.e., until the Ohio Court of Claims
determines that the employee is not entitled to immunity under O.R.C.
§ 9.86. Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). Thus,
unless and until the Ohio Court of Claims determines that defendants
may not invoke the immunity from civil liability conferred by O.R.C. §

2

In any event, a federal entity or employee does not act “under color of state
law” for purposes of 42 U.S.C. § 1983.

4

9.86, this Court has no jurisdiction to consider the state law claims
asserted against them.
Accordingly, at this juncture, the action may proceed on
plaintiff Perrin Burse’s claim of denial of access to the courts, and
retaliation in violation of the First Amendment to the United States
Constitution.3
It is RECOMMENDED that the claims asserted on behalf of
plaintiffs Burse Investment Management Group, Inc., and Burse Fund I
be dismissed, that the claim against defendant “Post Master General
U.S. Postal Service” be dismissed, and that all state law claims be
dismissed without prejudice to renewal should the Ohio Court of Claims
determine that the state employees are not entitled to immunity under
O.R.C. § 9.86.

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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

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

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

3

In permitting this claim to proceed at this stage of the litigation, the
Court expresses no opinion as to whether or not plaintiff has exhausted his
administrative remedies as required by 42 U.S.C. § 1997e(a).

5

to de novo review 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

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

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

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

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

preserve an issue for appeal . . . .”) (citation omitted)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
January 15, 2016
(Date)

6

to