UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
DANIEL BRONSON, Case No. 1:22-cv-719 Plaintiff, Barrett, J. vs. Litkovitz, M.J.
AT YOUR SERVICE TOWING, et al., REPORT AND Defendants. RECOMMENDATION
Plaintiff, a resident of Cincinnati, Ohio, has filed a pro se civil complaint against At Your Service Towing and Joseph N./owner of business. (Doc. 1-1). By separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is now 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). Screening of Complaint A. Legal Standard In enacting the original in forma pauperis statute, Congress recognized that a “litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). 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, 490 U.S. at 328-29; 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, 504 U.S. at 32; 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 328). 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 Atlantic 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 1915(e)(2)(B)(ii)). “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-
2 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). B. Plaintiff’s Complaint Plaintiff’s complaint alleges the following claims, verbatim: At Your Service Towing sold my car (white Mitshibishi Galant 2009). At Your Service Towing Company took my car during the summer of 2022.
At Your Service Towing Company did not return my car to me with due process of law. At Your Service Towing Company kept possession of my car without due process of law. This is a direct violation of my 5th Amendment under the United States Constitution.
(Doc. 1-1 at PAGEID 6). As relief, plaintiff seeks replacement of his car and $20,000.00. (Doc. 1-1 at PAGEID 7). C. Resolution Plaintiff’s complaint provides no factual content or context from which the Court may reasonably infer that the defendants violated plaintiff’s rights under 42 U.S.C. § 1983. Iqbal, 556 U.S. at 678. To state a § 1983 claim, plaintiff must allege (1) the deprivation of a right secured by the Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law. See Hines v. Langhenry, 462 F. App’x 500, 503 (6th Cir. 3 2011) (citing Boykin v. Van Buren Twp., 479 F.3d 444, 451 (6th Cir. 2007); Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). Plaintiff appears to allege that the taking of his automobile was done without due process of law. However, plaintiff fails to allege the circumstances under which his automobile was
confiscated or any facts plausibly suggesting the defendants were acting under color of state law at the time. In addition, before plaintiff may challenge the alleged deprivation of his personal property in federal court, plaintiff 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, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), rev’d on other grounds, Daniels v.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
DANIEL BRONSON, Case No. 1:22-cv-719 Plaintiff, Barrett, J. vs. Litkovitz, M.J.
AT YOUR SERVICE TOWING, et al., REPORT AND Defendants. RECOMMENDATION
Plaintiff, a resident of Cincinnati, Ohio, has filed a pro se civil complaint against At Your Service Towing and Joseph N./owner of business. (Doc. 1-1). By separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is now 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). Screening of Complaint A. Legal Standard In enacting the original in forma pauperis statute, Congress recognized that a “litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). 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, 490 U.S. at 328-29; 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, 504 U.S. at 32; 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 328). 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 Atlantic 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 1915(e)(2)(B)(ii)). “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-
2 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). B. Plaintiff’s Complaint Plaintiff’s complaint alleges the following claims, verbatim: At Your Service Towing sold my car (white Mitshibishi Galant 2009). At Your Service Towing Company took my car during the summer of 2022.
At Your Service Towing Company did not return my car to me with due process of law. At Your Service Towing Company kept possession of my car without due process of law. This is a direct violation of my 5th Amendment under the United States Constitution.
(Doc. 1-1 at PAGEID 6). As relief, plaintiff seeks replacement of his car and $20,000.00. (Doc. 1-1 at PAGEID 7). C. Resolution Plaintiff’s complaint provides no factual content or context from which the Court may reasonably infer that the defendants violated plaintiff’s rights under 42 U.S.C. § 1983. Iqbal, 556 U.S. at 678. To state a § 1983 claim, plaintiff must allege (1) the deprivation of a right secured by the Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law. See Hines v. Langhenry, 462 F. App’x 500, 503 (6th Cir. 3 2011) (citing Boykin v. Van Buren Twp., 479 F.3d 444, 451 (6th Cir. 2007); Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)). Plaintiff appears to allege that the taking of his automobile was done without due process of law. However, plaintiff fails to allege the circumstances under which his automobile was
confiscated or any facts plausibly suggesting the defendants were acting under color of state law at the time. In addition, before plaintiff may challenge the alleged deprivation of his personal property in federal court, plaintiff 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, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), rev’d on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986). “If satisfactory state procedures are provided in a procedural due process case, then no constitutional deprivation has occurred despite the injury.” Jefferson v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004). A plaintiff “may not seek relief under [42 U.S.C. §] 1983 without first pleading and proving the inadequacy of state or administrative processes and remedies to redress [his] due
process violations.” Id. at 588. Plaintiff has failed to sufficiently plead that the post- deprivation tort remedies available to him under Ohio law are inadequate to adjudicate his property-loss claim. See Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999) (citing Hudson, 468 U.S. at 534-36) (“State tort remedies generally satisfy the postdeprivation process requirement of the Due Process Clauses.”). Therefore, plaintiff’s claim that defendants violated his due process rights by seizing his auto should be dismissed. Accordingly, the complaint fails to state a claim upon which relief may be granted and should be dismissed under 28 U.S.C. § 1915(e)(2)(B).
4 IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's complaint be DISMISSED with prejudice. 2. The Court certify pursuant to 28 U.S.C. § 1915(a) 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. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997). Date: 12/9/2022 x Ltt ov Karen L. Litkovitz, Magistrate Judge United States District Court
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
DANIEL BRONSON, Case No. 1:22-cv-719 Plaintiff, Barrett, J. vs. Litkovitz, M.J.
AT YOUR SERVICE TOWING, et al., Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. 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).