Nelms v. Madison

• Court: District Court, S.D. Ohio
• Decided: November 20, 2023
• Docket: 2:23-cv-03663
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

TONY L. NELMS, SR.,

Plaintiff,

v. Civil Action 2:23-cv-3663 Judge Sarah D. Morrison Magistrate Judge Chelsey M. Vascura JAMES MADISON, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION Plaintiff, Tony L. Nelms, Sr., an Ohio resident proceeding without the assistance of counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court GRANTS Plaintiff’s request to proceed in forma pauperis. 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 for the 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, the undersigned RECOMMENDS that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to assert any claim over which this Court has subject-matter jurisdiction. I. STANDARD OF REVIEW Under 28 U.S.C. § 1915(e), the federal in forma pauperis statute, Courts must sua sponte dismiss an action upon determining that an in forma pauperis complaint fails to state a claim on which relief can be granted. Thus, a typical initial screen involves consideration of the merits of the claims asserted. In this case, however, upon review of Plaintiff’s Complaint, the undersigned

determines that it is unnecessary to consider the merits of the claims she advances because this Court lacks subject-matter jurisdiction to hear such claims. When the face of the complaint provides no basis for federal jurisdiction, the Court may dismiss an action as frivolous and for lack of subject-matter jurisdiction under both 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of Civil Procedure 12(h)(3). Williams v. Cincy Urban Apts., No. 1:10-cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182 F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)). II. ANALYSIS Plaintiff alleges that, while he was a resident of the Laurels of Walden Park, a long-term care facility, his 5G Android phone was stolen from his room. Plaintiff seeks to recover the cost of the phone and phone case from the Laurels. (Compl., ECF No. 1-1.)

Plaintiff’s allegations fail to provide a basis for a claim over which this Court has jurisdiction. “The basic statutory grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for federal-question jurisdiction, and § 1332, which provides for diversity of citizenship jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) (cleaned up). Federal-question jurisdiction is implicated when a plaintiff pleads a claim “arising under” the federal laws or the United States Constitution. Id. For a federal court to have diversity jurisdiction pursuant to § 1332(a), complete diversity of citizenship must exist (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). Federal Rule of Civil Procedure 8(a)(1) requires a pleading to contain “a short plain statement of the grounds for jurisdiction.” Fed. R. Civ. P. 8(a)(2). Thus, “a plaintiff seeking diversity jurisdiction [must] set forth the factual basis on which that jurisdiction is predicated.”

Farmer v. Fisher, 386 F. App’x 554, 556 (6th Cir. 2010); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“[I]t is to be presumed that a cause lies outside [the Court’s] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.”). Although this pleading standard does not require “detailed factual allegations,” a complaint will not “suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). In this case, the undersigned construes Plaintiff’s Complaint to advance a cause of action for common law conversion. See Bunta v. Superior VacuPress, L.L.C., 171 Ohio St. 3d 464, 469 (2022) (“Conversion is the wrongful exercise of dominion over property to the exclusion of the

rights of the owner or the withholding of the property from the owner’s possession under a claim inconsistent with the owner’s rights.”). Conversion is “governed by the laws of the state where the converter handled the property,” not by any federal authorities. See Charash v. Oberlin Coll., 14 F.3d 291, 296 (6th Cir. 1994). Nor has Plaintiff alleged that he and Defendants are citizens of different states or that the amount in controversy exceeds $75,000. Thus, Plaintiff has failed to plausibly allege facts upon which the Court could rely to conclude that this Court has subject- matter jurisdiction over his claims. III. DISPOSITION For the reasons set forth above, Plaintiff’s motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a) (ECF No. 1) is GRANTED. It is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint pursuant to § 1915(e)(2) for failure to assert any claim over which this Court has subject-matter jurisdiction.

PROCEDURE ON OBJECTIONS If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A District Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a District Judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE