Clemons v. Ohio Bureau of Workers' Compensation
REPORT AND RECOMMENDATION that 2 MOTION to Expedite and 4 Complaint be denied. Objections to R&R due by 4/25/2017. For the reasons stated in this R&R, 1 MOTION for Leave to Proceed in forma pauperis is granted. Signed by Magistrate Judge Terence P. Kemp on 4/11/2017. (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
Cornelius J. Clemons,
: Case No. 2:17-cv-0213
Ohio Bureau of Workers
Compensation, et al.,
: JUDGE GEORGE C. SMITH
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Plaintiff Cornelius J. Clemons, a non-prisoner pro se
litigant, filed this action seeking leave to proceed in forma
Mr. Clemons qualifies financially for in forma
pauperis status, so his motion for leave to proceed (Doc. 1) is
For the reasons set forth below, the Court will
recommend that the complaint be dismissed as barred by the
doctrine of res judicata.
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).
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.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Pro se complaints are to be
construed liberally in favor of the pro se party. See Haines v.
Kerner, 404 U.S. 519 (1972).
The complaint will be evaluated
under these standards.
Mr. Clemons filed this case on March 14, 2017, 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 pay him $1,829,078.00 in damages
arising from an injury which occurred in the course of his
employment and which was acknowledged in BWC claim number 10858586. (Doc. 1-1 at 87). Mr. Clemons states that 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 pay him
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,
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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.
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.
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. 20141138, slip op. (Sept. 24, 2014).
Mr. Clemons, alleging violations of his constitutional
rights and conversion of his property, 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
That case was dismissed pursuant to 28 U.S.C.
§1915(e)(2) for failure to state a claim upon which relief may
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 petitioner for a writ
of habeas corpus. Clemons v. Ohio Bureau of Workers’
Compensation, et al., No. 2:15-cv-964 (Doc. 14, January 4,
Mr. Clemons appealed that decision to the Sixth Circuit
Court of Appeals, which affirmed this Court’s judgment. Clemons
v. Ohio Bureau of Workers Compensation, et al, No. 16-3095
(August 18, 2016).
Mr. Clemons then filed a second action against the same
parties relating to the same BWC claim in this Court on
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September 2, 2016 in an attempt to address the Court’s grounds
for dismissal of the complaint in the first action.
was also dismissed pursuant to 28 U.S.C. §1915(e)(2) for failure
to state a claim upon which relief may be granted.
concluded that Mr. Clemons’ second action was barred by the
doctrine of res judicata due to the dismissal in the first
Clemons v. Ohio Bureau of Workers’ Compensation et al.,
No. 2:16-cv-846 (Doc. 12, February 17, 2017).
appealed that decision to the Sixth Circuit Court of Appeals,
but later voluntarily dismissed the appeal. Clemons v. Ohio
Bureau of Works Compensation, et al., No. 17-3216 (March 24,
Mr. Clemons then filed a third action against the same
parties relating to the same BWC claim in this Court on February
28, 2017. He named the same defendants and cited the same BWC
claim number as the previous two cases in this Court.
Clemons voluntarily dismissed this case on March 1, 2017.
Clemons v. Ohio Bureau of Workers’ Compensation, et al., No.
2:17-cv-175 (Doc. 4).
In his current filing, Mr. Clemons once again alleges the
same amount of harm arising out of the same BWC claim against
the same defendants.
While the complaint is not identical to
the previously filed complaints, it clearly arises out of the
same set of facts and circumstances.
The instant complaint is essentially an attempt to have the
Court once again reconsider the claims which were previously
“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.”
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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), 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 citations and quotation omitted);
Parker v. Gibbons, 62 Fed.Appx. 95, 96 (6th Cir. Apr.
1, 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 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, see 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
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part of the screening process required by §1915(e).
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, the Court finds that: (1)
Mr. Clemons’ action has twice been adjudicated by this Court, a
court of competent jurisdiction (See Case No. 2:15-964; 2:16846) (2) the present action involves the same parties as his
previous actions; (3) the present action raises issues or claims
which were either actually litigated or should have been raised
and litigated in the prior actions; 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 two actions.
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 first litigation.
For all of the reasons above, Plaintiff’s motion for leave
to proceed in forma pauperis is granted.
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 be denied.
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
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specific proposed findings or recommendations to which objection
is made, together with supporting authority for the
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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