Jerry v. Sandusky

Filing 3

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Tom N Jerry - It is Recommended that this case should be dismissed without prejudice for failure to state a claim upon which relief can be granted. Objections to R&R due by 7/13/2012. Signed by Magistrate Judge Michael R Merz on 06/26/12. (pb1)(Jerry)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TOM N. JERRY, et al.,

:

Plaintiffs,

Case No. 3:12-cv-200
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsGERALD ARTHUR SANDUSKY,
Defendant.

:

REPORT AND RECOMMENDATIONS
This action is before the Court for review prior issuance of process. Plaintiff was granted
to
leave to proceed in forma pauperis under 28 U.S.C. §1915. 28 U.S.C. §1915(e)(2), as am
ended by
the Prison Litigation Reform Act of 1995 TitleVIII of P.L. 104-134, 110 Stat. 1321(effective April
26, 1996)(the "PLRA"), reads as follows:
Notwithstanding any filing fee, or a portion thereof, that m have
ny
ay
been paid, the court shall dism iss the case at any tim e if the court
determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal -(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
A complaint is frivolous under thisstatute if it lacks an arguable ba either in law or in fact.
sis

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Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989).

In deciding

whether a complaint is “frivolous,” that is, theCourt does not consider whether a plaintiff has good
intentions or sincerely believes that he or she has suffered a legal wrong. Rather the test is an
objective one: does the complaint have an arguable basis in law or fact?
It is appropriate for a court to consider this question sua sponte prior to issuance of process
"so as to spare prospective defendants the

inconvenience and expense of answering such

complaints." Neitzke, 490 U.S. at 324 ; McGore v. Wrigglesworth, 114 F.3d 601 (6 th Cir. 1997);
Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually is
when making a determination based solely on the pleadings, to accept without question the truth of
the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is permitted
under §1915(e) only "if it appears beyond doubt that th e plaintiff can prove no set of facts which
would entitle him to relief." Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), disagreed with by
Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985).
§1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma
pauperis status. Benson v. O’Brian, 179 F.3d 1014 (6 th Cir. 1999). Filing an in forma pauperis
application tolls the statute of limitations. Powell v. Jacor Communications Corporate, 320 F.3d
599 (6 th Cir. 2003)(diversity cases);

Truitt v. County of Wayne, 148 F.3d 644, 648 (6

th

Cir.

1998)(federal question cases).
Plaintiff in this case has not filed a complaint, but only a request for preliminary injunctive
relief against Defendant Gerald Sandusky, the form assistant football coach at Pennsylvania State
er
University recently convicted on m
ultiple counts of child sexual abuse. Mr. Jerry, who indicates his
residence is in McLean, Virginia, alleges that he is in imminent danger of bodily harm from Mr.

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Sandusky unless this Court restrains him.
The case is utterly frivolous. It fails to explain how a person living in Virginia could be at
risk of bodily harm in Dayton, Ohio, from a m an in prison in Pennsylvania. This Court has no
jurisdiction over Sandusky and Plaintiff alleges no acts done by Sandusky in Ohio which would
support acquiring jurisdiction. The case should be di
smissed without prejudice for failure to state a
claim upon which relief can be granted.
Plaintiff also needs to understand that filing acase in federal court is not like writing a letter
to the editor or posting on a blog. Fed. R. Civ. P. 11authorizes federal courts to sanction frivolous
filings. It is respectfully suggestedthat Plaintiff read Rule 11 before making further filings in this or
any other court.
June 26, 2012,
s/ Michael R. Merz
United States Magistrate Judge

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 recom
mendations within fourteen days after being se
rved with this Report
and Recommendations. Pursuant to Fed.R.Civ.P. 6( e), this period is autom atically extended to
seventeen days because this Report is being serv ed by one of the m ethods of service listed in
Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and m be extended further by the Court on tim motion for
ay
ely
an extension. Such objections shall specify the portions of the Report objected to and shall be
accompanied by a memorandum in support of the objections. If the Report and Recom
mendations
are based in whole or in part upon m
atters 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 m ay
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 days after being served
with a copy thereof. Failure to m objections in accordance with this procedure may forfeit rights
ake
th
on appeal. See, United States v. Walters, 638 F.2d 947 (6 Cir. 1981); Thomas v. Arn, 474 U.S. 140
(1985).

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