Fonge v. Settlement Administrator (GCG) et al
INITIAL SCREEN REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the Court DISMISS this action for failure to state a claim. Objections to R&R due by 1/10/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/27/2016. (er)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
JOSEPH N. FONGE,
Civil Action 2:16-cv-995
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
SETTLEMENT ADMINISTRATOR, et al.,
INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Joseph N. Fonge, who is proceeding without the assistance of counsel, brings
this action against attorneys Adam J. Levitt, John Tangren, Gregory Travalio, and Mark
Troutman; “Settlement Administrator, In re Porsch Cars North America, Inc. Plastic Coolant
Tubes Products Liability Litigation”; and “PCNA’s Designated Counsel William Kiniry, Jr.”
(collectively “Defendants”), asserting due process claims pursuant to 42 U.S.C. § 1983. (Pl.’s
Compl. 2, ECF No. 1-1.) The Court previously granted Plaintiff’s request to proceed in forma
pauperis. (ECF No. 2.) This matter is now before the Court for the initial screen of Plaintiff’s
Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend
dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, 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. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the
reasons that follow, it is RECOMMENDED that the Court DISMISS this action for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630
F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards
to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard
does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and
Formerly 28 U.S.C. § 1915(d).
conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to
survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility
is established “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. In addition, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010 WL 1252923, at *2
(6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). The Court is not
required, however, to accept as true mere legal conclusions unsupported by factual allegations.
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555).
According to his Complaint, in January 2014, Plaintiff submitted a “claim package” to
the Settlement Administrator in connection with a class-action settlement reached in In re
Porsch Cars North America, Inc. Plastic Coolant Tubes Products Liability Litigation, Case
Number 2:11-md-2233. (Pl.’s Compl. 5, ECF No. 1-1.) In February 2016, the Settlement
Administrator sent Plaintiff a notice of deficiency, informing him that his claim was deficient
and required supplementation. Plaintiff failed to receive the deficiency notice because he was
incarcerated. Plaintiff consequently failed to timely correct the identified deficiencies, resulting
in the denial of his claim for the settlement benefit. Upon release from incarceration, Plaintiff
unsuccessfully sought reconsideration of his claim.
Plaintiff maintains that the Settlement Administrator’s delay in sending him the
deficiency letter “violated a substantial due process right by effectively denying [him] a claim to
the settlement that otherwise would have been available to [him].” (Id. at 6.) He also maintains
that the Settlement Administrator was obligated to provide him an opportunity to correct any
deficiencies and reconsider his claim upon his release from prison.
As best as the Court can discern (and consistent with his notation on the Civil Cover
Sheet, ECF No. 1-2), Plaintiff seeks to assert a claim under 42 U.S.C. § 1983 for violation of the
Due Process Clause of the Fourteenth Amendment premised upon his allegations that the
Settlement Administrator’s actions deprived him of his property interest in a claim benefit
without due process of law. Plaintiff fails to identify the nature of the relief he seeks.
Plaintiff’s Complaint cannot support a cause of action under § 1983. In order to plead a
cause of action under § 1983, Plaintiff must plead two elements: “(1) deprivation of a right
secured by the Constitution of laws of the United States (2) caused by a person acting under
color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir.
2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006)); see also Dist.
Atty’s Office v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 2318 (2009) (explaining that § 1983 is a
federal civil rights statute “which gives a cause of action to those who challenge a State’s
‘deprivation of any rights . . . secured by the Constitution.’”).
Plaintiff’s Complaint falls short with regard to the second element of a § 1983 claim. To
sufficiently plead the second element, Plaintiff’s Complaint must contain allegations from which
the Court could conclude that Defendants’ actions could be considered the actions of the State
for purposes of § 1983 liability. Defendants are individuals employed by private entities. The
conduct of private individuals or entities may be considered state action “if, [and] only if, there is
such a ‘close nexus between the State and the challenged action’ that seemingly private behavior
‘may be fairly treated as that of the State itself.’” Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S.
345, 351 (1974)). Plaintiff’s Complaint contains no allegations from which the Court could infer
that there is a “close nexus” between the State and the Settlement Administrator’s denial of his
claim. The Undersigned therefore concludes that Plaintiff has failed to allege facts upon which
this Court could conclude that Defendants acted under the color of state law.
Because Plaintiff has failed to state a valid § 1983 claims against Defendants, it is
RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C. §
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS
Plaintiff’s action for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
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 to de novo review of 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 object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] 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 of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when 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 to preserve an issue for appeal . . . .” (citation
IT IS SO ORDERED.
Date: December 27, 2016
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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