McQueen v. White

Filing 6

REPORT AND RECOMMENDATION - Plaintiff's MOTION for Leave to Proceed in forma pauperis (Doc 5 ) is GRANTED. It is RECOMMENDED that 1 COMPLAINT be dismissed for failure to state a claim upon which relief can be granted. Objections to R&R due by 6/6/2016. Signed by Magistrate Judge Terence P. Kemp on 5/18/2016. (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
John McQueen,

:
Plaintiff,

:
:

Mark A. White,
Defendant.

JUDGE ALGENON L. MARBLEY

:

v.

Case No. 2:16-cv-0152

Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
In a prior order filed in this case, Doc. 2, the Court noted
that Plaintiff John McQueen had neither paid the filing fee for a
civil case nor submitted an application to proceed in forma
pauperis.

He was advised that the failure to do either could

lead to dismissal.

On April 13, 2016, Plaintiff filed a motion

for leave to proceed in forma pauperis.

It provides a small

amount of detail about his finances, enough to permit the Court
to decide that he cannot afford the filing fee.
5) is therefore granted.

His motion (Doc.

However, for the following reasons, the

Court will recommend that the case be dismissed under 28 U.S.C.
§1915(e).
I.

Introduction

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).

Haines v.

The complaint will be evaluated

under these standards.
II.

Discussion

In his complaint, Mr. McQueen stated that he was attempting
to appeal a decision of the Ohio Supreme Court which upheld the
dismissal of a state court action he filed against Dr. White (as
the complaint says, “Plaintiff, John McQueen, requests this
honorable court to accept jurisdiction of his appeal from the
judgment of the Ohio Supreme Court entered Feb. 10, 2016, under
Case No. 2015-1817...”).

In its prior order, the Court advised

Mr. McQueen that a United States District Court has no
jurisdiction to hear an appeal from a decision of a state court.
See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923)(“The
jurisdiction possessed by the District Courts is strictly
original”)(original in this context means “not appellate”). In
his motion for leave to proceed in forma pauperis, Mr. McQueen
has addressed this issue, stating that he is not pursuing an
appeal from the state court judgment, but rather asserting an
independent claim against the defendant. The Court must
therefore consider whether such a claim should be allowed to
proceed here.
-2-

Leaving aside any statements in the original complaint which
take issue with the state courts’ handling of the case which Mr.
McQueen filed there - because he cannot, under the Rooker case,
obtain review of alleged state court errors from this Court - the
complaint alleges only this: that Mr. McQueen filed a civil
rights action against Mark White in state court, and that the
state court complaint alleged that “Mark A. White, showed
deliverate (sic) indifference to [Mr. McQueen’s] serious medical
needs by addicting him to pain killers and then discontinued the
medication claiming he had made a mistake. Thus, leaving
McQueen, to suffer with broken bones and no treatment.”
Complaint, Doc. 1, ¶1. There are no other allegations about who
Mark White is or in what capacity he acted, and no indication of
when any of the relevant events occurred.
In his motion for leave to proceed in forma pauperis, Mr.
McQueen clarifies that he is asserting a Fourteenth Amendment
claim. He has also asked the Court to order the defendant to
produce Mr. McQueen’s medical records “so the Court can get to
the truth of Plaintiff’s allegations contained in the pleadings
at the state court level.” He asserts that “on its face, the
Court can not just say a plaintiff can prove no set of facts.
The Court must prove it.” Doc. 5, at 2.
Since Mr. McQueen has referred to his state court complaint,
the Court will examine the state court proceedings as well.
According to the Tenth District Court of Appeals, which filed an
Opinion in that case on September 29, 2015, there was, quoting
the trial court’s dismissal order, “‘“no allegation in the
complaint suggests that [appellant] was a state prisoner, or
otherwise under the care, custody, or control of the state at the
time of the events in question.’” McQueen v. White, 2015 WL
5703293, *1 (Franklin Co. App. Sept. 29, 2015). On appeal, Mr.
McQueen argued that Dr. White, who is apparently a private
physician, was a state actor because, among other things, Dr.
White provided treatment pursuant to Mr. McQueen’s state-issued

-3-

medical card. The court of appeals rejected all of his arguments
and affirmed the trial court’s decision that the complaint did
not state a claim for constitutional violations under 42 U.S.C.
§1983.
Giving Mr. McQueen the benefit of every doubt, and taking
into account the pleadings and arguments he filed in the state
courts, it is clear that he has not alleged any basis for federal
court jurisdiction. The state courts correctly observed that
absent state action - that is, something which the defendant did
either as a state official or on behalf of a state or local
governmental entity - the provisions of the United States
Constitution, including the Eighth and Fourteenth Amendments, do
not apply. As the United States Supreme Court stated in Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978), “most rights
secured by the Constitution are protected only against
infringement by governments.” Since 42 U.S.C. §1983 is simply a
way for private litigants to enforce their constitutional rights
in court, absent infringement of a constitutional right by a
state government or state actor, there is no viable claim under
that statute.
To be sure, there are ways in which a private individual can
be held to have acted under color of state law. See Marie v. Am.
Red Cross, 771 F.3d 344, 362 (6th Cir. 2014). There must,
however, be facts pleaded in the complaint which make it
plausible that the defendant acted in one of these ways before
the Court can allow a complaint to proceed against a private
individual under §1983. This Court has held that when
“Plaintiff's allegations do not set forth facts establishing that
it is plausible any Defendant can be considered a state actor,”
dismissal is required. Stephens v. Grandview Medical Center
Police Dept., 2012 WL 1884129* 4 (S.D. Ohio May 22, 2012),
adopted and affirmed 2012 WL 2115390 (S.D. Ohio June 11, 2012).
Mr. McQueen’s complaint does not allege any such facts.
Even if it did, because the state courts decided this exact issue

-4-

against him, the case is likely to be subject to dismissal on res
judicata grounds - that is, based on the concept that “a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94
(1980). However, the Court need not rely on that doctrine here
because the complaint does not plead any facts which plausibly
allege that Defendant White is a state actor or acted under color
of state law. For that reason, the complaint is subject to
dismissal under 28 U.S.C. §1915(e)(2).
III. Conclusion
Based on the reasons stated in this Report and
Recommendation, it is recommended that this action be dismissed
for failure to state a claim upon which relief can be granted.
IV. Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen 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
-5-

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

-6-