Johnson v. Steiner and Associates et al

Filing 2

ORDER AND REPORT AND RECOMMENDATION: ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Jeffrey Johnson. REPORT AND RECOMMENDATION: It is RECOMMENDED that Plaintiff's Complaint be DISMISSED pursuant to Federal Rule of Civil Procedure 12(h)(3). Objections to R&R due by 7/16/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on July 2, 2018. (jlk) (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
EASTERN DIVISION
JEFFREY JOHNSON,
Plaintiff,
Civil Action 2:18-cv-584
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

STEINER AND ASSOCIATES,
et al.,
Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, an Ohio resident who is proceeding without the assistance of counsel, brings
this action against Defendants Steiner and Associates, Donna Gorsky, and Austin Ellsworth.
This matter is before the Court for consideration of Plaintiff’s Motion for Leave to Proceed in
forma pauperis, which is GRANTED. (ECF No. 1.) All judicial officers who render services in
this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This matter is also
before the Court sua sponte for an initial screen of Plaintiff’s Complaint as required by 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 lack of subject matter jurisdiction.

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I.
Congress has authorized the sua sponte dismissal of complaints that fail to state a claim
upon which relief maybe granted. 2 8 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however,
the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th
Cir. 2010) (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure
to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
In addition, a federal court has limited subject matter jurisdiction. “The basic statutory
grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which
provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of
citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question
jurisdiction is invoked when a plaintiff pleads a claim “arising under” the federal laws, the
Constitution, or treaties of the United States. Id. (citation omitted). For a federal court to have
diversity jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means
that each plaintiff must be a citizen of a different state than each defendant, and the amount in
controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).
II.
Plaintiff’s Complaint in its entirety states as follows:
On Thursday, December 1st 2017 I was summoned by head of Security Justin
Ellsworth and head of Human Resources Donna Gorsky to meet in the offices of

Steiner and Associates. I was under the belief that I was being given the results of
a complaint that I had filed but I was actually being terminated from my
employment as Security Officer for Easton Security. The only reason that was
given for my termination was that
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I had to use the restroom that was outside of my assigned area and
poor performance.

Since the restroom was actually within my assigned area and that I had been given
no formal write ups for any performance issues, I believe that my termination was
Trumped [sic] up and due to complaints that I had filed with Ms[.] Gorsky
concerning hostile working condition and the three complaints I had filed with the
Ohio Civil Rights Comission [sic].
Therefore I am citing The Ohio Civil Rights act [sic] (1515.39) on retaliation as
the basis for my complaint to the courts[.]
(ECF No. 1-1 at PAGEID # 7.) Plaintiff seeks monetary damages in the amount of $1 million.
(Id. at PAGEID # 8.)
The Complaint does not contain “a short and plain statement of the grounds for the
court’s jurisdiction[,]” Fed. R. Civ. P. 8(a)(1), because Plaintiff has failed to allege a claim
arising under federal law and it does not appear that complete diversity exists. Plaintiff
specifically asserts that the Ohio Civil Rights Act, Ohio Rev. Code § 4112 (“OCRA”), serves as
the basis for his Complaint. (ECF No. 1-1 at PAGEID # 7.) Accordingly, Plaintiff’s claim does
not state a claim arising under federal law. Id.; cf. Moorer v. Summit Cty. Dep’t of Job and
Family Servs., No. 5:10-cv-457, 2011 WL 2746098, at *10 (N.D. Ohio July 14, 2011)
(identifying claims under the Ohio Civil Rights Act as state law claims and declining to exercise
supplemental jurisdiction over these claims).
Moreover, Plaintiff cannot successfully invoke this Court’s diversity jurisdiction with
regard to his state-law OCRA claim because there does not appear to be complete diversity of
citizenship. As the party invoking federal jurisdiction, Plaintiff bears the burden of proving that
diversity of citizenship exists. Glob. Tech., Inc. v. Yubei (Xinxiang) Power Steering Sys. Co.,
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Ltd., 807 F.3d 806, 810 (6th Cir. 2015) (“As always, the party invoking federal jurisdiction has
the burden to prove that jurisdiction.”); State Farm Mut. Auto. Ins. Co. v. Elite Health Ctrs., Inc.,
No. 16-cv-12380, 2016 WL 4073561, at *3 (E.D. Mich. Aug. 1, 2016) (“The citizenship of the
parties is a jurisdictional fact in diversity actions. The burden is on the plaintiff––the party
invoking federal jurisdiction––to plead and prove such facts.”). Here, Plaintiff and Defendant
Steiner and Associates are both Ohio residents. (ECF No. 1-1 at PAGEID ## 4–5 (listing
Plaintiff’s address in Columbus, Ohio, and identifying Defendant Steiner and Associates’
address as 160 Easton Town Center, Columbus, Ohio 43219).) Plaintiff does not assert that
Defendants Gorsky and Ellsworth are citizens of another state and Plaintiff specifically failed to
invoke this Court’s jurisdiction under 28 U.S.C. § 1332. (Id. at PAGEID # 5 (checking only the
box entitled “Title 28 U.S.C. § 1343(3)” as the basis of subject matter jurisdiction while leaving
unchecked the box entitled “Title 28 U.S.C. § 1332(a)(1)”).) Based on this record, Plaintiff has
not demonstrated that diversity of citizenship exists. Accordingly, the Undersigned cannot
discern a basis for federal jurisdiction.
III.
For the reasons explained above, the Court lacks subject matter jurisdiction over this
action. It is therefore RECOMMENDED that Plaintiff’s Complaint be DISMISSED pursuant
to Federal Rule of Civil Procedure 12(h)(3).
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).

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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
omitted)).
IT IS SO ORDERED.

Date: July 2, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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