Clemons v. Ohio Bureau of Worker's Compensation

Filing 6

REPORT AND RECOMMENDATION: Magistrate Judge grants 1 MOTION for Leave to Proceed in forma pauperis; recommends that 2 MOTION to Expedite be denied as moot and 5 Complaint be dismissed as barred by the doctrine of res judicata. It is recommended that if the case is dismissed on these grounds, Mr. Clemons be barred from filing any further cases based on his workers' compensation claim unless the filing is accompanied by a certificate from an attorney who is licensed to practice in this Court, or in the State of Ohio, stating that there is a good faith basis for the claims being made. Objections to R&R due by 7/12/2017. Signed by Magistrate Judge Terence P. Kemp on 6/28/2017. (kdp)(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
Cornelius J. Clemons,

:

Plaintiff,

:

v.

: Case No. 2:17-cv-501
: JUDGE GEORGE C. SMITH
Magistrate Judge Kemp
:

Ohio Bureau of Workers
Compensation,
Defendant.

:
REPORT AND RECOMMENDATION

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

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 barred by the
doctrine of res judicata.
A short background is in order.

On March 14, 2017, Mr.

Clemons filed a complaint against the Ohio Bureau of Workers’
Compensation (“BWC”), its Administrator, Stephen Buehrer, and its
Board of Directors.

In his complaint, Mr. Clemons alleged 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 10-858586.

Mr. Clemons asserted that Defendants’

failure to compensate him was a breach of contract and a
violation of his constitutional rights, and he asked for
compensatory damages and/or a writ of mandamus ordering the BWC
to pay him $1,829,078.00.

He also moved for leave to proceed in

forma pauperis, which triggered a duty on the part of this Court,
under 28 U.S.C. §1915(e)(2) to screen the case to determine if it

was frivolous, malicious, or failed to state a claim upon which
relief could be granted.

Finding that because this Court had

previously decided that it lacked jurisdiction over Mr. Clemons’
claims, see Clemons v. Ohio Bureau of Workers’ Compensation, 2015
WL 2365603 (S.D. Ohio May 15, 2015), adopted and affirmed 2016 WL
47878 (S.D. Ohio Jan. 4, 2016), aff’d Clemons v. Ohio Bureau of
Workers Compensation, et al, No. 16-3095 (August 18, 2016) - and
had also decided, in Clemons v. Ohio Bureau of Workers
Compensation, 2016 WL 5914205 (S.D. Ohio Oct. 11, 2016), adopted
and affirmed 2017 WL 666124 (S.D. Ohio Feb. 17, 2017), that res
judicata barred the re-filing of his claims, the Court issued a
Report and Recommendation recommending that the case be
dismissed.

See Clemons v. Ohio Bureau of Workers’ Compensation,

Case No. 2:17-cv-213 (S.D. Ohio Apr. 11, 2017)(Doc. 5).
Mr. Clemons objected to the Report and Recommendation.
Before the Court could rule on his objection, however, he
voluntarily dismissed that case.

One week later, he filed this

action, making essentially the same claims which he has now
advanced in five separate filings (he also filed a complaint on
February 28, 2017, which was assigned Case No. 2:17-cv-175, and
then dismissed that complaint before the Court could rule on his
motion for leave to proceed in forma pauperis).
There is no need to devote much time to the merits of this
case.

Clearly, as the Court has said in its prior orders, any

claim which Mr. Clemons seeks to litigate in this Court against
the Bureau of Workers’ Compensation or any of its officials
relating to the same claim which has been the subject of all of
his cases here is barred both because the Court has determined it
has no jurisdiction over that claim and because that res judicata
is applicable to the jurisdictional issue presented by all of his
later filings, including this one.

Consequently, this case

should be dismissed under 28 U.S.C. §1915(e)(2), and such
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dismissal is recommended.

Further, because this is the fifth

such lawsuit, and the fourth recommended dismissal, it is
recommended that if the case is dismissed on these grounds, Mr.
Clemons be barred from filing any further cases based on his
workers’ compensation claim unless the filing is accompanied by a
certificate from an attorney who is licensed to practice in this
Court, or in the State of Ohio, stating that that there is a good
faith basis for the claims being made.

Finally, if the Court

adopts this Report and Recommendation, the motion to expedite
(Doc. 2) should be denied as moot.
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

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

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/s/ Terence P. Kemp
United States Magistrate Judge

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