Bostic Senior v. Davis et al

Filing 3

REPORT AND RECOMMENDATION that 2 Complaint be dismissed under 28 U.S.C. §1915(e)(2) with leave to amend. Objections to R&R due by 3/17/2016. The Court grants 1 MOTION for Leave to Proceed in forma pauperis. Signed by Magistrate Judge Terence P. Kemp on 2/29/2016. (agm)(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
Teddy Glen Bostic Senior,

:

Plaintiff,

:

Case No. 2:15-cv-3029

:

JUDGE GREGORY L. FROST

v.

Jeanette Arlene Davis, et al., :
Defendants.

Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff Teddy Glen Bostic Senior filed this action against

Jeanette Arlene Davis, a private citizen, and against the

Columbus Police Department, Columbus Police Chief Kimberly
Jacobs, and Columbus Police Officer Ernest Rice.

Mr. Bostic has

moved for leave to proceed in forma pauperis (Doc. 1), and the
Court grants that request.

The case is now before the Court to

conduct an initial screening under 28 U.S.C. §1915(e)(2).

For

the following reasons, it will be recommended that the complaint
be dismissed for failure to state a claim upon which relief can
be granted.

I.

Legal Standard

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).
under these standards.

II.

A.

Haines v.

The complaint will be evaluated
Discussion
The Facts

Here are the facts pleaded in Mr. Bostic’s complaint, which

the Court must assume to be true for purposes of deciding whether
he has stated a claim which can properly be heard by this federal
court.

Ms. Davis is Mr. Bostic’s ex-wife, although it appears that

they lived together for some period of time after they divorced.
He alleges that she became “involved” with the City of Columbus
Police Department in some fashion.

The result of this

involvement, according to the complaint, is that she has been
assisted by police officers in a harassment campaign that Mr.

Bostic describes as a “relentless daily quest without mercy to
get the plaintiff to commit suicide.”

He accuses both Chief

Jacobs and Officer Rice of conspiring with Ms. Davis in this

quest, which has included warrantless entries into his home and
attacks on his person and on his pet dogs.

The complaint also

alleges that an unknown assailant attacked Mr. Bostic in the

presence of a Columbus police officer and Ms. Davis in an effort
-2-

to prevent him from filing this case.
B.

The Law

Mr. Bostic has brought his claim under 42 U.S.C. §1983 and

the United States Constitution.

That is the proper way to assert

claims against state officials who allegedly have violated a
citizen’s constitutional rights.

There are some facts in the

complaint which suggest that his rights may have been violated by
one or more state officials.

But they are not specific enough

for his complaint to be able to survive a motion to dismiss.

The Federal Rules of Civil Procedure apply to cases filed in

a federal court, and they must be followed by all litigants

whether or not they are represented by an attorney. The content
of complaints is governed by Rule 8. Here is what it says about
that:

(a) Claim for Relief. A pleading that states a claim
for relief must contain:
(1) a short and plain statement of the grounds for the
court's jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim showing
that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include
relief in the alternative or different types of relief.

The United States Supreme Court has recently said that in order
for a complaint to satisfy this standard, it must have enough
facts in it so that the court in which it has been filed can

determine if, assuming the facts are true, the defendants might

be liable to the plaintiff. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007).

Here are the types of things missing from the complaint.

Did either Chief Jacobs or Officer Rice enter Mr. Bostic’s home
-3-

without a warrant and without his consent?
and when?

If so, which of them,

Did either of them personally attack him?

which one, and when?

If so,

Was either of them involved directly in the

alleged attack on his dogs?

When and where did that take place?

Those are the types of facts which must be pleaded in order for

the Court to decide if the complaint states a plausible claim for
relief.

Without them, the complaint is simply too vague, and it

would be subject to dismissal under the Twombly case.

See also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements do not suffice”).

A separate problem exists with respect to Mr. Bostic’s

attempt to include Ms. Davis as a defendant in this federal
lawsuit.

As a private citizen, she is not subject to §1983,

since that statute applies only to state or local governmental
officials.

A private citizen can be held liable under that

statute, however, if that private citizen has conspired with
public officials to violate someone’s constitutional rights.
Bostic makes that claim.

However, a complaint may not, under

Mr.

Rule 8 and the case law, simply say that there was a conspiracy.
It must provide specific facts to support that statement.

Conspiracies are easy to allege, but they can substantially

expand the reach of federal statutes like §1983.

For that and

other reasons, the courts have consistently said that “conspiracy
claims must be pled with some degree of specificity and that

vague and conclusory allegations unsupported by material facts
will not be sufficient to state such a claim under §1983.”
Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987).

complaint in question must “allege specific facts showing

agreement and concerted actions among the defendants ....”
v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989).
What are the facts which must be pleaded?
-4-

The
Durre

They include the

actions or statements of each of the members of the conspiracy
showing that, in fact, they were all working together for the

same purpose, together with dates when the conspirators acted to
carry out their agreement and a description of what they did.

The failure to allege all elements of a conspiracy, including an
agreement or a meeting of the minds among the alleged

conspirators and overt actions in furtherance of the conspiracy,

requires dismissal of the complaint. Woodrum v. Woodward County,
866 F.2d 1121, 1126 (9th Cir. 1989); Gometz v. Culwell, 850 F.2d
461, 464 (8th Cir. 1988); McGillicuddy v. Clements, 746 F.2d 76,

77 (1st Cir. 1984).

Again, as with his allegations against the

police officers, Mr. Bostic has simply not included enough

specific facts in his complaint to show that he might plausibly
be able to prove that his ex-wife and the police officers in

question conspired to deprive him of his constitutional rights.

These are defects in the complaint which Mr. Bostic might,

by filing an amended complaint containing details about his
claim, be able to correct.

Consequently, it will be recommended

that the complaint be dismissed with leave to amend.
complaint should be filed within thirty days.

Any amended

That amended

complaint, like the present one, will then be reviewed to see if
it is sufficient to state a claim before the Court will order
that it be served on the defendants.
III.

Recommendation

For all of the reasons stated above, it is recommended that

this case be dismissed under 28 U.S.C. §1915(e)(2) with leave to
amend.

Any amended complaint should be filed within 30 days of

the Court’s order on this matter.

Mr. Bostic should be aware

that if he does not file an amended complaint, should the Court
order him to do so, or if his amended complaint does not

satisfactorily address the issues raised above, this case will
not proceed.

-5-

IV.

Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) 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).

A judge of this Court shall make a de novo determination of those
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