Bibbs et al v. JPAY, L.L.C.
REPORT AND RECOMMENDATIONS that the Complaint be DISMISSED with prejudice, with the exception of Plaintiff's state-law contract claims, which should be DISMISSED without prejudice; that the 7 MOTION for Temporary Restraining Or der be DENIED; and that the Court certify that an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and, therefore, deny Plaintiff leave to appeal in forma pauperis. Objections to R&R due by 11/29/2023. Signed by Magistrate Judge Kimberly A. Jolson on 11/15/2023. (kk2)(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
NATHANIEL BIBBS, et al.,
JPAY, LLC., et al.,
Case No. 2:23-cv-2792
District Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Plaintiffs Nathaniel Bibbs and Ronald Leeks, prisoners at the Allen Correctional
Institution, have filed a pro se civil rights complaint against Defendants JPay L.L.C. and ViaPath
Technologies pursuant to 42 U.S.C. § 1983. Plaintiffs have paid the full filing fee.
The complaint was initially submitted by Steven Abdul-Azziz El Bey, who purported to
sign the complaint as “Amicus Curiae.” (See Docs. 1, 4). El Bey has since submitted a “Certificate
of Lay Advocacy,” and a Motion for an Emergency Temporary Restraining Order, which were not
signed by the Plaintiffs to this action. (See Docs. 6, 7). As the Court has previously noted (See
Doc. 4 at PageID 23–24), an individual my appear in federal court only pro se or through legal
counsel. 28 U.S.C. § 1654. Rule 11 of the Federal Rules of Civil Procedure further requires that
“[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record
in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed
by the party.” Fed. R. Civ. P. 11(a). Pleadings not signed on behalf of a party or licensed attorney
are subject to dismissal. See, e.g., Keyway Leasing Trust v. U.S., No. 1:98-cv-796, 1999 WL
810386, at *2 (W.D. Mich. Aug. 26, 1999); Lawton v. Medevac Mid-America, Inc., 138 F.R.D.
586, 588 (D. Kan. 1991). El Bey does not provide an Ohio Bar number or otherwise appear to be
an attorney licensed to practice law in the State of Ohio.1 Accordingly, El Bey is unable to
represent the named Plaintiffs in this action.
This matter is before the Court for a sua sponte review of the complaint to determine
whether the complaint, or any portion of it, should be dismissed because it 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. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C.
§ 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
Screening of Plaintiffs’ Complaint
A. Legal Standard
A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with
a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328–29 (1989); see
also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal
basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest
which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis
when the allegations are delusional or rise to the level of the irrational or “wholly incredible.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. The Court need not
accept as true factual allegations that are “fantastic or delusional” in reviewing a complaint for
frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at
See The Supreme Court of Ohio Attorney Directory
Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). 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 Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Hill, 630 F.3d at 470–71 (“dismissal standard articulated in Iqbal and
Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded
factual allegations as true, but need not “accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain “detailed factual allegations,” it must provide “more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does
a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.
at 557. The complaint must “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
Plaintiffs allege that on or about February of 2013, Defendant JPay L.L.C. entered into
contracts with the Ohio Department of Rehabilitation and Correction (ODRC) to install kiosk
machines in ODRC facilities and sell JPay tablets to inmates. (Doc. 5 at PageID 28). The kiosks
enabled inmates to purchase, download, and sync music, games, photos, e-books, and emails to
the tablets. According to Plaintiffs, the JPay tablets were sold to inmates from 2013 through the
fall of 2022 for $130 to $175, “with the false pretense that inmates would have their tablets for the
life of the tablet as well as the opportunity to purchase and own digital content up to and including
the duration of their incarceration.” (Id. at PageID 29).
Plaintiffs assert that after purchasing a tablet and digital content “under the pretense that
this digital content was being purchased for the use and permanent at will access,” the ODRC
informed inmates that they would no longer be permitted to possess the JPay tablets. (Id.).
According to Plaintiffs, Defendant ViaPath Technologies “would take over the contract with JPAY
and ODRC, and then they would force inmates to relinquish the JPAY tablets along with their
purchased digital content in the inmates possession that they purchased in order to distribute
VIAPATH’s tablets where they themselves own all of the content and the inmates are forced to
rent the content monthly.” (Id.). Plaintiffs indicate that as part of the transition to ViaPath tablets
inmates were given the choice to send their purchased JPay tablet home or to turn it in to designated
staff members for a credit. (See id. at PageID 28). After September 31, 2023, Plaintiffs indicate
that the phased-out JPay tablets would be considered contraband. (Id. at PageID 30).
Although Plaintiffs indicate that they were informed that previously purchased music
would be transferred and downloaded to new tablets, Plaintiffs and others have failed to receive
the content. (Id. at PageID 29). Plaintiffs further contend that not all inmates were able to
download purchased content onto their tablets before the JPay kiosks were removed and none of
the purchased games are being returned to inmates, instead requiring inmates to pay for a game
subscription. (Id. at PageID 29–30, 32). Plaintiffs maintain that they have never consented to
“having their property illegally taken away” from them and were not affirmatively presented with
JPay’s terms of service prior to purchasing a JPay tablet. (Id. at PageID 31).
Based on the above factual allegations, Plaintiffs purport to bring a class action under 42
U.S.C. § 1983. Plaintiffs allege that Defendants violated the Federal Trade Commission Act’s
prohibition of “unfair or deceptive acts or practices in or affecting commerce.” See 15 U.S.C.
§ 45(a). Second, Plaintiffs claim that depravation of their property amounted to an unlawful taking
prohibited by the Fifth Amendment. Finally, Plaintiffs bring a breach of contract claim against
The complaint is subject to dismissal at the screening stage. See 28 U.S.C. § 1915(e)(2)(B).
As an initial matter, the complaint should be limited to alleged violations of Plaintiffs’ own
rights. To the extent that Plaintiffs have filed a purported class action, “Federal Rule of Civil
Procedure 23(a)(4) generally does not permit pro se plaintiffs without legal training to serve as
class representatives.” Sanders v. Macauley, No. 22-1502, 2022 WL 16729580, at *5 (6th Cir.
Aug. 10, 2022) (citing Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009)
(holding that pro se litigants are “inadequate class representatives”)). Cf. Dodson v. Wilkinson,
304 F. App’x 434, 438 (6th Cir. 2008). In this case, Plaintiffs have not moved for class certification
or otherwise demonstrated that they would be adequate class representatives.2 See Sanders, 2022
With respect to the adequacy of representation, Plaintiffs state they intend to retain counsel
“highly experienced in complex consumer class action litigation, and Plaintiffs intend to
vigorously prosecute this action on behalf of the putative class.” (Doc. 5 at PageID 34). However,
WL 16729580, at *5 (finding that where the plaintiff “offered no basis from the general rule that
pro se plaintiffs are not adequate class representatives, the district court did not abuse its discretion
by denying class certification”). See also White v. Kasich, No. 2:12-cv-1125, 2013 WL 941440,
at *10 (S.D. Ohio Mar. 8, 2013) (Deavers, M.J.) (Report & Recommendation) (explaining that the
reason pro se prisoners are generally prohibited from bringing class actions is because they are
unable to “adequately to represent the interests of the class”), adopted, 2013 WL 1281887 (S.D.
Ohio Mar. 27, 2013) (Smith, J.); Brown v. Collins, No. 2:07-cv-826, 2008 WL 818793, at *2 (S.D.
Ohio Mar. 24, 2008) (Kemp, M.J.; Frost, J.) (citing Palasty v. Hawk, 15 F. App’x 197, 200 (6th
Cir. 2001)) (same); Marcum v. Jones, No. 1:06-cv-108, 2006 WL 543714, at *1 (S.D. Ohio Mar.
3, 2006) (Dlott, J.) (and cases cited therein) (holding that the pro se inmate “may bring his own
claims to federal court without counsel, but not the claims of others”). Therefore the complaint
should be limited to alleged violations of plaintiffs’ own federal rights. Cf. Dodson, 304 F. App’x
at 438. See also Bradbury v. ODRC, Case No. 2:23-cv-2355, 2023 WL 6997143, at *1 (Morrison,
J.; Deavers, M.J.) (S.D. Ohio Oct. 24, 2023) (finding that the plaintiff “cannot bring class action
litigation pro se” in a case with similar factual allegations ).
Plaintiffs’ claims brought under the Federal Trade Commission Act (FTCA) should be
dismissed. As noted above, Plaintiffs assert that Defendants violated § 5 of the FTCA, 15 U.S.C.
§ 45(a), by employing unfair or deceptive acts or practices. (See Doc. 5 at PageID 34–35).
However, “there is no private right of action under the FTC Act.” Drake v. Sometime Spouse,
LLC, 784 F. App’x 602, 605 (10th Cir. Aug. 22, 2019) (citing Am. Airlines v. Christensen, 967
F.2d 410, 414 (10th Cir. 1992)). See also Morales v. Walker Motor Sales, Inc., 162 F. Supp. 2d
Plaintiffs have not retained counsel to date or otherwise demonstrated a basis for the Court to
deviate from the general rule that pro se plaintiffs are not adequate class representatives.
786, 790 (S.D. Ohio Sept. 22, 2022) (“Courts have uniformly held that a private right of action
does not exist under § 5 of the FTCA.”) (collecting cases). Absent a private cause of action,
Plaintiffs’ claims brought under the FTCA should be dismissed for failure to state a claim upon
which relief may be granted. See Edoho-Eket v. Waifair.com, No. 17-6509, 2019 WL 2524366, at
*2–3 (6th Cir. Jan. 23, 2019) (affirming the dismissal of FTCA claim for failure to state a claim
upon which relief may be granted, finding that “Section 5 of the FTCA does not provide a private
right of action”).
Plaintiffs’ claim that Defendants violated the Takings Clause of the Fifth Amendment
should also be dismissed. The Takings Clause, which is applicable to the states through the
Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without
just compensation.” U.S. Const. Amend. V. See Brown v. Legal Found. of Washington, 538 U.S.
216, 231–32 (2003) (“While it confirms the State’s authority to confiscate private property, the
text of the Fifth Amendment imposes two conditions on the exercise of such authority: the taking
must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.”). In this case,
Plaintiffs have not made any allegation plausibly suggesting that their tablets or digital content
were taken for a public use. To the contrary, Plaintiffs allege that the tablets were to be traded in
or sent home due to a change in ODRC policy and service/media provider. Absent any allegation
plausibly suggesting Plaintiffs’ property was taken for a public use, Plaintiffs’ Fifth Amendment
takings claim should be dismissed. See, e.g., Neives v. Allison, Case No. 1:22-cv-1020, 2023 WL
5956981, at *3 (E.D. Cal. Sept. 13, 2023) (finding that plaintiff’s allegation of a takings clause
violation for confiscation of JPay tablets insufficient to state a claim for relief where the plaintiff
did not allege the deprivation was for public use) (Report and Recommendation) (pending);
Peterka v. Dixon, No. 4:21-cv-367, 2023 WL 3402613, at *6 (N.D. Fla. Mar. 17, 2023) (finding
that a shared profit between the Florida Department of Corrections and JPay itself to be insufficient
to show a taking for public use) (Report and Recommendation), adopted, 2023 WL 3124718 (N.D.
Fla. Apr. 27, 2023).
To the extent that Plaintiffs contend that the deprivation of their private property amounted
to a violation of their federal due process rights, this claim should also be dismissed. In order to
state a claim based on the loss of their property, plaintiffs must first “plead . . . that state remedies
for redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983).
See also Hudson v. Palmer, 468 U.S. 517 (1984). “If satisfactory state procedures are provided in
a procedural due process case, then no constitutional deprivation has occurred despite the injury.”
Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587–88 (6th Cir. 2004). Accordingly,
in order to state a procedural due process claim under Section 1983 “the plaintiff must attack the
state’s corrective procedure as well as the substantive wrong.” Meyers v. City of Cincinnati, 934
F.2d 726, 731 (6th Cir. 1991) (quoting Vicory, 721 F.2d at 1066). A plaintiff “may not seek relief
under Section 1983 without first pleading and proving the inadequacy of state or administrative
processes and remedies to redress [his] due process violations.” Jefferson, 360 F.3d at 588.
Plaintiffs have not alleged any facts even remotely indicating that their remedies under
Ohio law to redress the wrong of which they complain are inadequate. Plaintiffs’ complaint fails
to explain why a state tort remedy for conversion would not suffice to address their claims. See
Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). See, e.g., Bradbury v. ODRC, Case No.
2:23-cv-2355, 2023 WL 6997143, at *1 (Morrison, J.; Deavers, M.J.) (S.D. Ohio Oct. 24, 2023)
(dismissing due process claim where JPay tablets were confiscated where plaintiff failed to allege
that Ohio’s post-deprivation tort remedies are inadequate). Therefore, Plaintiffs fail to state a due
process claim that is actionable in this § 1983 proceeding.
Finally, the Court should decline to exercise supplemental jurisdiction over Plaintiffs’
state-law, breach of contract claim. Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 210 (6th Cir.
2004) (although the exercise of supplemental jurisdiction under 28 U.S.C. § 1367 is a matter of
discretion, when a court dismisses all federal claims before trial, it generally should dismiss the
state law claims as well). Plaintiffs’ state-law contract claims should be dismissed without
prejudice. Bullock v. City of Covington, 698 F. App’x 305, 307 (6th Cir. 2017) (“Normally, when
a court declines to exercise supplemental jurisdiction, the court dismisses the claims without
IT IS THEREFORE RECOMMENDED THAT:
1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B),
with the exception of Plaintiffs’ state-law contract claims which should be DISMISSED without
2. The Motion for an Emergency Temporary Restraining Order (Doc. 7) be DENIED.
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith,
and therefore, deny Plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).
NOTICE REGARDING OBJECTIONS:
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served
with a copy thereof. That period may be extended further by the Court on timely motion by either
side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,
and shall be accompanied by a memorandum of law in support of the objections. A party shall
respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy
of those objections. Failure to make objections in accordance with this procedure may forfeit
rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947
(6th Cir. 1981).
Date: November 15, 2023
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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