Saunders v. Luthern Social Services of Central Ohio Faith Mission et al

Filing 2

REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis and 2 Complaint filed by Joachim Saunders. It is RECOMMENDED that plaintiff's motion for leave to proceed in forma pauperis be denied and that this action be di smissed for failure to state a claim for relief. Objections to R&R due by 1/19/2016. Signed by Magistrate Judge Norah McCann King on 12/30/2015. (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

JOACHIM SAUNDERS,
Plaintiff,
vs.

Civil Action 2:15-cv-3100
Judge Frost
Magistrate Judge King

LUTHERN SOCIAL SERVICES OF CENTRAL
OHIO FAITH MISSION, et al.,
Defendants.
REPORT AND RECOMMENDATION

Plaintiff Joachim Saunders seeks leave to pursue a civil action
in this Court without prepayment of fees or costs pursuant to 28
U.S.C. § 1915(a). This matter is now before the Court for the initial
screen of the Complaint required by 28 U.S.C. § 1915(e).

A federal court must dismiss a case at any time if it determines
that an action instituted without prepayment of fees or costs 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). In conducting this
review, a court must hold pro se pleadings to a less stringent
standard than it does 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 plaintiff must plead facts that

give rise to a valid cause of action. Stanley v. Vining, 602 F.3d 767,

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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).
For the reasons that follow, the Court concludes that the
Complaint must be dismissed for failure to state a claim upon which
relief can be granted.
The Complaint, ECF No. 1-1, alleges that the defendant
organizations called the Columbus Police Department complaining that
plaintiff was not following the rules of the shelter operated by them
and “was making use of Luth[eran] Social Services as a hub for crime.
. . . ” Id. at 3. Plaintiff then left “the area.” Id. Plaintiff asks

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the Court “to take in account [his] personal insult cause of false
claims in regraud to my life . . . .” Id. at 6 [sic].
It does not appear that complete diversity of citizenship exists
between plaintiff and defendants. See 28 U.S.C. § 1332. The Complaint
invokes the jurisdiction of the Court to entertain claims alleging
constitutional deprivations by persons acting under color of state
law, see 42 U.S.C. § 1983, or claims arising under the Constitution,
law, or treaties of the United States, see 28 U.S.C. § 1331.
Complaint, p. 2.
However, the Complaint does not allege that either defendant
acted under color of state law. Moreover, allegations of defamation,
libel, or slander are not alone sufficient to give rise to a
constitutional claim. Paul v. Davis, 424 U.S. 693 (1976). In short,
the Complaint fails to state a claim upon which relief can be granted.
It is therefore RECOMMENDED that plaintiff’s motion for leave to
proceed in forma pauperis, ECF No. 1, be denied and that this action
be dismissed for failure to state a claim for relief.
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).

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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 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)).

December 30, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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to