Clemons v. Ohio Bureau of Workers' Compensation et al

Filing 8

REPORT AND RECOMMENDATION AND ORDER - Plaintiff's motion for leave to proceed in forma pauperis is granted. (Doc. 1 ) It is recommended that this case be dismissed under 28 U.S.C. §1915(e)(2) for failure to state a claim upon which relief may be granted, and that any pending motions also be dismissed. Objections to R&R due by 10/28/2016. Signed by Magistrate Judge Terence P. Kemp on 10/11/2016. (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
Cornelis J. Clemons,

:

Plaintiff,

:

v.

: Case No. 2:16-cv-0846

Ohio Bureau of Workers
Compensation, et al.,
Defendants.

: CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
:
:

REPORT AND RECOMMENDATION
AND ORDER
Plaintiff, Cornelius J. Clemons, a non-prisoner pro se
litigant, filed this action seeking leave to proceed in forma
pauperis.

He also filed a petition for a writ of mandamus.

(Doc. 3).

Mr. Clemons qualifies financially for in forma

pauperis status, so his motion for leave to proceed (Doc. 1) is
granted.

For the reasons set forth below, the Court will

recommend that the complaint be dismissed as it is barred by the
doctrine of res judicata.
I. Background
Mr. Clemons filed this case on September 2, 2016, against
Defendants, the Ohio Bureau of Workers’ Compensation (“BWC”); its
Administrator, Stephen Buehrer; and its Board of Directors.

In

his complaint, Mr. Clemons alleges that the State of Ohio is
contractually obligated to compensate him $1,829,078.00 for his
cognizant injuries/losses that arose from injury occasioned in
the course of his employment acknowledged in valid BWC claim
number 10-858586.

(Doc. 1-1, ¶72).

Mr. Clemons states that the

Defendants’ failure to compensate him is a breach of contract and
a violation of his constitutional rights.

He seeks compensatory

damages and/or a writ of mandamus ordering the BWC to compensate
him in the amount of $1,829,078.00.

By way of additional background, Mr. Clemons has pursued
compensation from the BWC in relation to the same set of facts in
a number of forums.

He first pursued his claims in the Franklin

County Court of Common Pleas, where the court dismissed the
complaint against the State of Ohio and several state employees
for lack of subject matter jurisdiction.

See Clemons v. Ohio

Bureau of Workers’ Compensation, et al., 13CVC05-5646, slip op.
(Aug. 5, 2013).

Mr. Clemons appealed to the Ohio Court of

Appeals Tenth Appellate District, which affirmed the trial
court’s decision.

See Clemons v. Ohio Bureau of Workers’

Compensation, et al., 2014 WL 1347755 (Ohio App. 10th Dist. Mar.
27, 2014).

Mr. Clemons next filed a complaint for a writ of

mandamus in the Ohio Supreme Court.

The Respondents, the Ohio

Bureau of Workers’ Compensation’s Administrator, Steve Buehrer,
acting in his official capacity and the Board of Directors,
acting in its official capacity, filed a motion to dismiss.

The

Supreme Court of Ohio granted the motion and dismissed the case.
See State of Ohio ex rel. Cornelius Clemons v. Board of Directors
of Ohio’s Workers Compensation and Steve Buehrer, Administrator
of Ohio Bureau of Workers’ Compensation, No. 2014-1138, slip op.
(Sept. 24, 2014).
Mr. Clemons then filed an action against the same parties
relating to the same BWC claim in this Court on March 18, 2015,
and also sought a writ of habeas corpus.

This case was dismissed

pursuant to 28 U.S.C. §1915(e)(2) for failure to state a claim
upon which relief may be granted.

The Court concluded that (1)

Eleventh Amendment immunity barred Mr. Clemons’ monetary claims
and his request for declaratory relief as to all the defendants;
and (2) Mr. Clemons was not in custody and thus not a proper
petitoner for a writ of habeas corpus.

Clemons v. Ohio Bureau of

Workers’ Compensation, et al., No. 2:15-cv-964 (Doc. 14, January
4, 2016).

Mr. Clemons appealed that decision to the Sixth
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Circuit Court of Appeals, which affirmed this Court’s judgment.
Clemons v. Ohio Bureau of Workers Compensation, et al., No. 163095 (August 18, 2016).
In his current filing, Mr. Clemons attempts to address the
Court’s grounds for dismissal of the prior complaint.

He states

that “Eleventh Amendment State Immunity is not applicable to this
complaint wherefore; Ohio’s [sic] has Consented to suit in this
District Court’s jurisdiction of 28 U.S.C. §1343(3) pursuant [to]
the 14th

Amendment and the 14th Amendment’s §5 powers of

Congress....” (Doc. 1-1 at ¶21).

Mr. Clemons also cites a number

of statutes and case law which he asserts support his claim for
relief.

While the complaint is not identical to the complaint

filed in his 2015 action in this Court, it clearly arises out of
the same set of facts and circumstances.
II.

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
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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).

See Haines v.

The Court is required to review the

instant complaint under these standards.
III.

Discussion

The instant complaint is essentially an attempt to have the
Court reconsider the claim which was previously dismissed, even
though that dismissal was affirmed by the Court of Appeals in
August of this year. “The doctrine of res judicata, or claim
preclusion, provides 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] prior
action.” Harris v. Ashley, No. 97–5961, 1998 WL 681219, at *2
(6th Cir. Sept.14, 1998) (per curiam) (quoting Kane v. Magna
Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995), in turn quoting
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398
(1981)). The doctrine applies not only to issues which were
actually raised and litigated in the prior action, but also to
any issues “which the parties, exercising reasonable diligence,
might have brought forward at the time.” Id. at *3 (internal
citation and quotation omitted); see also Parker v. Gibbons, 62
F.Appx. 95, 96 (6th Cir. 2003) (citing J.Z.G. Res., Inc. v.
Shelby Ins. Co., 84 F.3d 211, 213 (6th Cir. 1996)) (“Under claim
preclusion, a final judgment on the merits bars any and all
claims by the parties or their privies based on the same cause of
action, as to every matter actually litigated as well as every
theory of recovery that could have been presented.”).
Consideration of a subsequent complaint is precluded under the
res judicata doctrine if: (1) a final decision was rendered on
the merits in the first action by a court of competent
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jurisdiction; (2) the subsequent action involves the same
parties, or their privies, as the first action; (3) the second
action raises issues or claims which were either actually
litigated or should have been raised and litigated in the prior
action; and (4) there is an “identity” between the causes of
action to the extent the “claims arose out of the same
transaction or series of transactions, or ... the same core of
operative facts.” Browning v. Levy, 283 F.3d 761, 771–72, 773–74
(6th Cir. 2002) (internal citation and quotation omitted); see
also Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 528 (6th
Cir. 2006).

To promote the interests of judicial economy, a

district court may raise the doctrine of res judicata sua sponte.
Holloway Construction Co. V. United States Dept. of Labor, 891
F.2d 1211, 1212 (6th Cir. 1989), and other courts within this
circuit have dismissed complaints on that ground as part of the
screening process required by §1915(e).

See e.g. In re Muhammad,

2014 WL 5343363 (S.D. Ohio Oct. 20, 2014); Curry v. City of
Mansfield, 2014 WL 584798 (N.D. Ohio Feb. 11, 2014); Hawkins v.
Linden Yards Apartments, 2014 WL 1256419 (W.D. Tenn. March 26,
2014).
Applying the Browning factors: (1) Mr. Clemons’ action has
been adjudicated by this Court, a court of competent jurisdiction
(and the judgment was affirmed on appeal); (2) the present action
involves the same parties as his previous action; (3) the present
action raises issues or claims which were either actually
litigated or should have been raised and litigated in the prior
action; and (4) the claims arose out of the same transaction or
series of transactions and the same core of operative facts.

Mr.

Clemons refers to the exact same BWC claim number and seeks the
exact same amount of compensatory damages as the previous action.
Dismissal of a case on res judicata grounds in a court’s initial
screening pursuant to 28 U.S.C. §1915(e)(2)(B) is consistent with
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judgments of district courts within the Sixth Circuit.

Because

Mr. Clemons’ suit is barred by the doctrine of res judicata, the
Court need not address the legal arguments set forth in Mr.
Clemons’ complaint nor repeat its analysis which led to the
judgment against him in the previous litigation.
IV.

Recommendation

For all of these reasons, Plaintiff’s motion for leave to
proceed in forma pauperis is granted.

(Doc. 1) It is recommended

that this case be dismissed under 28 U.S.C. §1915(e)(2) for
failure to state a claim upon which relief may be granted, and
that any pending motions also be dismissed.
V. Procedure on Objections to Report and Recommendation
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

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

/s/Terence P. Kemp
United States Magistrate Judge
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