McCune v. JPay, Inc. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge James L. Graham on 8/24/2017. (ds)(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
James Stephen McCune,
Case No. 2:17-cv-670
JPay, Inc., et al.,
Plaintiff, an Ohio state inmate, brings the instant civil
action against JPay, Inc. (“JPay”), which provided the JP5 seveninch tablet purchased by plaintiff on or about November, 2015.
Plaintiff alleges that the tablet is defective, and that he has had
many problems with this device, which he claims no longer works.
Plaintiff has also named the Ohio Department of Rehabilitation and
Correction (“ODRC”) as a defendant, claiming that ODRC should be
responsible for insuring that no inmate is taken advantage of by a
company which provides products and services to inmates. Plaintiff
seeks $500,000 in damages and a court order directing JPay to
provide an extended warranty and insurance for their devices.
On August 10, 2017, the magistrate judge filed an initial
screen report and recommendation pursuant to 28 U.S.C. §1915A,
which requires the court, “in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of
a governmental entity,” to dismiss a complaint that fails to state
a claim upon which relief may be granted.
28 U.S.C. §1915A(a)-
The magistrate judge noted that plaintiff’s defective
product claims against the defendants are not based on a violation
of federal statutes or a deprivation of constitutional rights, and
do not provide a basis for federal question jurisdiction under 28
Doc. 5, p. 5.
The magistrate judge also found that
the allegations in the complaint are insufficient to support
diversity jurisdiction under 28 U.S.C. §1132 because defendant ODRC
is a citizen of Ohio, as is plaintiff, so complete diversity is not
present, and because the allegations in the complaint fail to show
that the amount in controversy would exceed $75,000.
Doc. 5, p. 5
(citing Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
magistrate judge concluded that due to the lack of allegations in
the complaint sufficient to support subject matter jurisdiction,
the complaint fails to state a claim for which relief could be
granted, and recommended that this action be dismissed.
5, p. 6.
plaintiff’s objections (Doc. 7) to the magistrate judge’s report
and recommendation. If a party objects within the allotted time to
a report and recommendation, the court “shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court
“may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”
§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.
Grinter v. Knight, 532 F.3d 567, 572
(6th Cir. 2008).
Courts conducting initial screens under §1915(e)
apply the motion to dismiss standard.
See, e.g., Hill v. Lappin,
630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true,
and determining whether plaintiff undoubtedly can prove no set of
facts in support of those allegations that would entitle him to
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.
Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive
a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
The court may
dismiss an action as frivolous and for lack of subject matter
jurisdiction under 28 U.S.C. §1915(e)(2)(B) and Fed. R. Civ. P.
12(h)(3) where there is no basis for federal jurisdiction apparent
on the face of the complaint.
Carlock v. Williams, 182 F.3d 916,
1999 WL 454880, *2 (6th Cir. 1999).
In his objection, plaintiff offers no argument as to why the
conclusions of the magistrate judge are erroneous.
He does not
identify any federal claim he seeks to pursue in this action, which
he acknowledges he has brought only on his own behalf.
the amounts he spent purchasing the device and downloads for the
device, including games, music and books. These amounts total less
Aside from the problem of incomplete diversity of
citizenship, the allegations in the complaint fail to establish
that plaintiff can recover more than the jurisdictional threshold
of $75,000 necessary for diversity jurisdiction.
recommendation (Doc. 5) is adopted. Plaintiff’s objection (Doc. 7)
This action is hereby dismissed pursuant to 28
U.S.C. §1915(e)(2)(B)(ii) and Rule 12(h)(3) for failure to state a
claim for which relief may be granted due to lack of subject matter
The clerk shall enter judgement dismissing this
Date: August 24, 2017
s/James L. Graham
James L. Graham
United States District Judge
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