IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Alice Gail Day, :

Plaintiff, :

v. : Case No. 2:10-cv-1162

Worthington Public Schools, : JUDGE HOLSCHUH

 MAGISTRATE JUDGE KEMP

Defendant. :

REPORT AND RECOMMENDATION

AND ORDER

On December 23, 2010, this Court received a complaint from

Alice Gail Day. Her complaint was accompanied by a request for

leave to proceed without payment of the filing fee. From a

financial standpoint, it does appear that she cannot afford the

fee, and her motion for leave to proceed in forma pauperis (#1)

is granted.

Under 28 U.S.C. §1915(e), which is part of the statute that

allows the Court to permit people to file a complaint in this

Court without paying the filing fee, the Court must review any

complaint filed by such a person to determine if, among other

things, it states a claim upon which relief can be granted. In

particular, the Court must look at the complaint to see if it

states a legal claim that can properly be heard in a federal (as

opposed to a state) court. If not, the case cannot proceed

because the Court would lack the jurisdiction, or power, to

decide it. Not every legal dispute between people can be tried

in a federal court; the federal court only has jurisdiction over

certain kinds of cases, or cases between certain kinds of people,

as described in Article III, section 2 of the United States

Constitution, and as provided for in an Act of Congress that

implements Article III.

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As it stands, the complaint which Ms. Day has submitted does

not appear to set forth any claim that this federal court can

hear. Her complaint is very brief; it simply says that she wants

the Court to review why it is that she has been banned from

working as a substitute teacher in the Worthington School

District, and to decide if the School District has to release to

her the personnel files of other substitute teachers. As relief,

she asks to be employed by this public school district.

One type of case which a federal court can hear is a case

arising under federal law - that is, which involves the

interpretation or application of some provision of the United

States Constitution or a federal statute. Ms. Day has not

pleaded any facts which would suggest that her claim for either

employment or for release of records involves any federal law. 

For example, she has not said that she is being treated

differently from others because of some category such as race,

national origin, religion, ethnicity, sex, or some other

discriminatory reason. That type of claim might involve the

application of the Equal Protection Clause of the Fourteenth

Amendment or some statute such as the Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e et seq. (although in order

to sue under Title VII, the aggrieved person must first pursue an

administrative claim before either the Equal Employment

Opportunity Commission or a similar state agency and receive a

“right-to-sue” letter), but she has not given the Court any

indication that this is the kind of claim she is making. Federal

courts can also decide cases that are based on state law if the

parties to the case are citizens of different states and the

amount involved in the case exceeds $75,000, but it appears that

Ms. Day and the Worthington Public Schools are both Ohio

residents, so that basis of jurisdiction would not apply either.

In short, Ms. Day does not, at the moment, seem to have

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pleaded a claim upon which a federal court could grant her any

relief, or over which a federal court could properly exercise its

jurisdiction. That being the case, it is being recommended that

this case be dismissed without prejudice for lack of subjectmatter jurisdiction. If this recommendation is adopted, a copy

of this Report and Recommendation, the complaint, and any

dismissal order should be mailed to the defendant.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen 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 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 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/ Terence P. Kemp 

United States Magistrate Judge

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