Cook v. Miller, No. 5:2018cv01122 - Document 5 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 10/23/18. The Court grants plaintiff's motion to proceed in forma pauperis and, for the reasons set forth in this order, dismisses this case pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. (Related Docs. 1 and 4 ) (D,MA)
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Cook v. Miller Doc. 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------MELVIN COOK, Plaintiff, vs. HOLLY MILLER, Defendant. : : : : : : : : : : : CASE NO. 5:18CV01122 OPINION & ORDER [Resolving Doc. 1, 4] ------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Before the Court is the complaint of pro se Plaintiff Melvin Cook against Defendant Holly Miller pursuant to 42 U.S.C. § 1983.1 Also before the Court is Pla“nt“‘‘ s rev“sed motion to proceed in forma pauperis,2 which is granted. For the reasons that follow, this case is dismissed. I. Background Plaintiff states his claim, in its entirety, as follows:3 Defendant sought to deny Plaintiff job which Plaintiff legally won. Made racial slurs to plaintiff in denying help to plaintiff secure job. Harassed plaintiff on job. Refused to ’rant extens“on to pla“nt“‘‘ ‘or s“tuat“ons out o‘ pla“nt“‘‘ s control. Threatened to arrest plaintiff on job site. Refused to pay plaintiff for work done and materials purchased. None of those actions were taken against any of the white contractors in the program. Refused to award further jobs to plaintiff which plaintiff was the low bidder. 1 Doc. 1. 2 Doc. 4. 3 Doc. 1 at 5. Dockets.Justia.com Case No. 5:18CV01122 Gwin, J. Plaintiff seeks $10,000 for work performed and materials purchased, $40,000 for harassment and a demeaning and hostile workplace, and punitive damages.4 In the Complaint and attachments thereto, Defendant is identified solely as Holly Miller, with an address of 175 S. Main St. Room 207, Akron, Ohio 44308. II. Discussion A. Standard of Review Although pro se pleadings are liberally construed,5 the Court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact.6 A claim lacks an arguable basis in law or fact when it is premised upon an indisputably meritless legal theory or when the factual contentions are clearly baseless.7 The dismissal standard for Fed. R. Civ. P. 12(b)(6)articulated in Bell Atl. Corp. v. Twombly,8 and Ashcroft v. Iqbal,9 governs dismissal for failure to state a claim under § 1915(e)(2)(B)(ii).10 A cause of action fails to state a claim upon which relief may be granted when it lacks plausibility in the complaint.11 4 Id. at 6. 5 Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). 6 Neitzke v. Williams, 490 U.S. 319, 328, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). 7 Neitzke, 490 U.S. at 327. 8 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). 9 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). 10 Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). 11 Twombly, 550 U.S. at 564. -2- Case No. 5:18CV01122 Gwin, J. The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true.12 Plaintiff is not required to include detailed factual allegations, but must provide more than an unadorned, the defendant-unlawfully-harmed-me accusation.13 A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action does not meet this pleading standard.14 In reviewing a complaint, the Court must construe the pleading in the light most favorable to the plaintiff.15 B. Plaintiff Fails to State a § 1983 Claim Fed. R. Civ. P. 8(a)(2) governs basic federal pleading requirements, and requires that the pleading contain a short and plain statement of the claim showing that the pleader is entitled to relief.16 A pa“r o‘ Supreme Court dec“s“ons . . . con‘“rms that [Rule 8] “mposes legal and ‘actual demands on the authors o‘ compla“nts. 17 A cla“m has ‘ac“al plaus“b“l“ty when the plaintiff pleads factual content that allows the court to draw the reasonable “n‘erence that the de‘endant “s l“able ‘or the m“sconduct alle’ed. 18 In order to state a plausible claim for relief upon which relief can be granted under 42 U.S.C. § 1983, Cook must allege two essential elements: (1) that a right secured by the 12 Id. at 555. 13 Iqbal, 556 U.S. at 678. 14 Id. 15 Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998) (citing Sistrunk, 99 F.3d at 197). 16 Iqbal, 556 U.S. at 677-78. 17 16630 South‘“eld Ltd. P sh“p v. Fla’star Bank, F.S.B. , 727 F.3d 502, 503 (6th Cir. 2013) (emphasis in original) (citing Twombly and Iqbal). 18 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). -3- Case No. 5:18CV01122 Gwin, J. Constitution or laws of the United States was violated, and (2) the claimed violation was comm“tted by a person act“n’ under color o‘ state law. 19 The trad“t“onal de‘“n“t“on o‘ acting under color of state law requires that the defendant in a § 1983 action have exerc“sed power possessed by v“rtue o‘ state law and made poss“ble only because the wron’doer “s clothed w“th the author“ty o‘ state law. 20 Here, there are no allegations in the Complaint, nor can the Court infer, that Defendant Holly Miller is a person acting under color of state law. Therefore, the Complaint does not contain either direct or inferential allegations respecting an essential element of a viable § 1983 claim against Defendant.21 The Court is not required to conjure unpleaded facts or construct claims against Defendant on behalf of Plaintiff.22 Even l“berally construed, Pla“nt“‘‘ s Compla“nt ‘a“ls to state a § 1983 cla“m upon wh“ch rel“e‘ can be granted, and is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). 19 West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (U.S. 1988) (citation omitted). 20 Id. at 49 (quoting U.S. v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941)). 21 See Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). 22 See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citation omitted); Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985). -4- Case No. 5:18CV01122 Gwin, J. III. Conclusion For all of the foregoing reasons, this case is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and closed. Pla“nt“‘‘ s mot“on to proceed in forma pauperis is granted.23 The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED. s/ Dated: October 23, 2018 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 23 Doc. 4. -5-
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