Williams v. Diccio et al

Filing 3

REPORT AND RECOMMENDATIONS Re: 2 Complaint filed by Darrell Williams; IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Complaint be DISMISSED without prejudice to renewal in state court; 2. The Court certify pursuant to 28 U.S.C. § 19 15(a)(3) that for the foregoing reasons an appeal of an Order adopting this Report and Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal in forma pauperis should be denied; and 3. The case be terminated on the docket of this Court. Objections to R&R due by 4/9/2012. Signed by Magistrate Judge Sharon L Ovington on 3/21/12. (cib1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

DARRELL WILLIAMS,

:
Case No. 3:12cv00086

Plaintiff,

:

v.

:

DR. JOSEPH DICCIO, et al.,

District Judge Timothy S. Black
Magistrate Judge Sharon L. Ovington

:

Defendants.

:

REPORT AND RECOMMENDATIONS1

Plaintiff Darrell Williams brings this case pro se against Dr. Joseph Diccio,
Grandview Hospital, Michael Principe, Nathan Moore, Robert Henry, and Robert
Melanshenko. (Doc. #1-2 at 2). An Ohio address is listed for all parties in this case. (Id.).
On March 21, 2012, this Court granted Plaintiff’s Application to Proceed in forma
pauperis under 28 U.S.C. § 1915. Currently, the case is before the Court for a sua sponte
review in order to determine whether Plaintiff’s Complaint, or any portion of it, should be
dismissed because it is frivolous, malicious, or fails to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B). If the Complaint raises a claim with an
arguable or rational basis in fact or law, it is neither frivolous nor malicious, and it may
not be dismissed sua sponte. Brand v. Motley, 526 F.3d 921, 923-24 (6th Cir. 2008); see

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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable
factual basis when its allegations are “fantastic or delusional.” Brand, 526 F.3d at 923
(quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989)); see Lawler, 898 F.2d at 1199. A Complaint has no arguable legal basis when it
presents “indisputably meritless” legal theories – for example, when the defendant is
immune from suit or when the plaintiff claims a violation of a legal interest which clearly
does not exist. See Neitzke, 490 U.S. at 327-28; see also Brand, 526 F.3d at 923.
Determining whether a Complaint fails to state a claim upon which relief may be
granted starts by accepting the plaintiff’s allegations as true and construing the Complaint
in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009). “[A] complaint must contain (1) ‘enough facts to state a claim to relief that is
plausible,’ (2) more than a ‘formulaic recitation of a cause of action’s elements,’ and (3)
allegations that suggest a ‘right to relief above a speculative level.’” Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 1965, 167 L.Ed.2d 929 (2007)).
“[T]he dismissal standard articulated in Iqbal and Twombly governs dismissals for failure
to state a claim under [28 U.S.C. §§ 1915A and 1915(e)(2)(B)] because the relevant
statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (internal citations omitted).
Plaintiff essentially alleges that the named defendants did not provide him with
proper medical treatment in relation to a “total knee replacement” he received at
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Grandview Hospital in Dayton, Ohio, on September 22, 2010. Specifically, Plaintiff
alleges that “upon awakening from surgery [he] was unable to feel [his] left leg all the
way down to [his] foot,” and a short time after being discharged to a rehabilitation center
“noticed quarter size black lesions on [his] left foot . . . .” (Doc. #1-2 at 3). After visiting
multiple medical professionals regarding the continuing pain in his left foot, as well as
trouble sleeping and loss of weight, Plaintiff claims he ended up at the Cleveland Clinic
in November 2010. There, he alleges he “received an EMG which gave a result of
decreased sensation 25% in [his] right foot and 100% in [his] left foot.” (Id. at 4).
Plaintiff claims the EMG “also stated that there was nerve injury that could have came
from nerve block, tourniquet and/or position if used in treatment.” (Id.). Thereafter,
Plaintiff returned to Dayton in order to continue “physical therapy and long term pain
management.” (Id. at 5). Plaintiff claims he is currently undergoing treatment for the
issue and “still experience[s] pain and loss of feeling in [his] left foot.” (Id.).
As to relief, Plaintiff “would like the court [to] hear [his] case and [that he] be
awarded an amount of $300,000 for [his] continued pain and suffering, continued medical
assistance [and] noneconomic damages.” (Id. at 6).
Although Plaintiff’s allegations are not delusional, they fail to reveal the presence
of a claim over which this Court has subject matter jurisdiction. See Wagenknecht v.
United States, 533 F.3d 412, 416 (6th Cir. 2008) (“a district court may sua sponte dismiss
an action when it lacks subject matter jurisdiction.”). Plaintiff’s Complaint simply does
not raise allegations capable of showing that one or more of the defendants named in this
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case acted under the color of state law or violated any of Plaintiff’s rights under the
United States Constitution. Instead, Plaintiff appears to be asserting a state law claim for
medical malpractice. As such, this Court only has subject matter jurisdiction in this case
if there is complete diversity of citizenship between all parties and the amount in
controversy exceeds $75,000.00. See 28 U.S.C. § 1332(a). Since multiple parties in this
case are residents of Ohio, complete diversity of citizenship does not exist. (Doc. #1-2 at
1-2). Accordingly, this Court lacks subject matter jurisdiction and Plaintiff’s Complaint
must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Complaint be DISMISSED without prejudice to renewal in state
court;

2.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of an Order adopting this Report and Recommendations
would not be taken in good faith, and consequently, leave for Plaintiff to
appeal in forma pauperis should be denied; and

3.

The case be terminated on the docket of this Court.

March 21, 2012

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen (14) days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen (17) days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party's objections within fourteen (14) days after being served with a copy
thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See, United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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