Reimund v. Faith, Inc. dba Pizza House, et al., No. 2:2009cv00505 - Document 13 (S.D. Ohio 2009)
Court Description: OPINION AND ORDER: The Report and Recommendation is hereby ADOPTED and AFFIRMED. This action is hereby DISMISSED for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Signed by Judge Algenon L. Marbley on 9/18/2009. (pes1)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION DEAN REIMUND, Plaintiff, vs. Civil Action 2:09-CV-505 Judge Marbley Magistrate Judge King FAITH, INC., dba PIZZA HOUSE, et al., Defendants. OPINION AND ORDER On June 23, 2009, the United States Magistrate Judge issued an Order and Report and Recommendation granting plaintiff s motion for leave to proceed in forma pauperis but recommending that the case be dismissed for lack of jurisdiction or for failure to state a claim for relief. Order and Report and Recommendation, Doc. No. 4. before the Court on plaintiff s objection This matter is now to the Report and Recommendation, Doc. No. 8, as well as on plaintiff s Amended Complaint, Doc. No. 12. Plaintiff, who is proceeding without the assistance of counsel in this action, appears to challenge the disposition of his Workers Compensation claim or claims. The Magistrate Judge reasoned that the original complaint failed to state a claim under federal law and failed to invoke the Court s diversity jurisdiction. See 28 U.S.C. §§1331, 1332. The Magistrate Judge also noted that the Eleventh Amendment to the United States Constitution divests this Court of jurisdiction over civil rights claims for monetary damages asserted against state agencies. Order and Report and Recommendation, p.2, Doc. No. 4. After filing his objections, plaintiff sought and was granted leave to file an amended complaint. The Court will consider, de novo, the Report and Recommendation and the entire record in this action, including the original and the amended complaints. See 28 U.S.C. §636(b); F.R. Civ. P. 72. The original complaint sought monetary damages and named as defendants plaintiff s apparent employer (which -- like plaintiff -- appears to be a resident of the State of Ohio), the Ohio Bureau of Workers Compensation, the Industrial Commission of Ohio and the Social Security Administration. Complaint, Doc. No. 6. This Court agrees that the Eleventh Amendment precludes plaintiff s claim for monetary damages against the state agencies. See Edelman v. Jordan, 415 U.S. 651 (1974). Plaintiff cannot proceed on the claim asserted in the original complaint against the Social Security Administration, if indeed any claim was asserted against that federal agency. See Affilitated Ute Citizens v. United Citizens, 406 U.S. 128, 141-42 (1972); United States v. Sherwood, 312 U.S. 584, 586 (1941). The Social Security Administration, a federal agency, is immune from any claim asserted by the plaintiff in this case. Because plaintiff and the defendant employer are both residents of the State of Ohio, the Court lacks diversity jurisdiction under 28 U.S.C. §1332. Plaintiff s amended complaint names as defendants various federal and state agencies, the Columbus Police, the Westerville Police, the Franklin County Sheriffs, and various current or former officials and individuals identified with recent financial scandals involving the Ohio Bureau Industrial Commission. employer as a defendant. of Workers Compensation and the Ohio Plaintiff also once again names his former Amended Complaint, Doc. No. 12. 2 Plaintiff alleges that the various federal, state and local law enforcement agencies failed or refused to investigate or correct alleged wrongdoing in the Ohio Bureau of Workers Compensation and the Ohio Industrial Commission. Plaintiff also again expresses his dissatisfaction with the resolution of his Workers Compensation claims extending back to April 1988. Plaintiff specifically asks that the defendant employer cover the costs for a hernia which occurred at work on June 18th, 2007. Complaint, p.11. Amended The amended complaint also seeks to privatize the Bureau of Workers Compensation, Amended Complaint, p. 12, full payment of all of plaintiff s Workers Compensation claims, additional monetary damages, an order requiring all law enforcement agencies to cease and desist from conducting business with the Ohio BWC, id., and an order requiring a federal investigation of the state agencies. Id. To the extent that plaintiff bases his claims on the recent financial scandals involving state agencies, those claims cannot proceed. It is well established that a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another. Diamond v. Charles, 476 U.S. 54, 64 (1986). [T]he general rule is that a private cause of action is not maintainable under a criminal statute. Am. Postal Workers Union v. Indept. Postal Sys. of Am., 481 F.2d 90, 93 (6th Cir. 1973). Moreover, the doctrine of sovereign immunity prohibits suits against the United States except in those instances, not present here, in which the United States has specifically consented to be sued. Affilitated Ute Citizens, 406 U.S. at 141; Sherwood, 312 U.S. at 586. Similarly, the Eleventh Amendment to the United States Constitution divests this Court of subject matter jurisdiction over any claims sought to be asserted against the defendant state agencies. 3 Finally, because diversity of citizenship is lacking, this Court cannot entertain a claim by plaintiff against his employer. In short, the Court concludes that the complaint must be dismissed for lack of jurisdiction or for failure to state a claim upon which relief can be granted. Plaintiff s objections to the Report and Recommendation are DENIED. The Report and Recommendation is hereby ADOPTED and AFFIRMED. This action is hereby DISMISSED for lack of jurisdiction and for failure to state a claim upon which relief can be granted. The Clerk shall enter FINAL JUDGMENT in this action. Moreover, the Court concludes that an appeal from the judgment entered in this case would not be taken in good faith. s/Algenon L. Marbley Algenon L. Marbley United States District Judge 4
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