IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Donna Miller, :

Plaintiff, :

v. : Case No. 2:12-cv-1148

 : JUDGE GEORGE C. SMITH

Ruby Lipscomb, et al., Magistrate Judge Kemp

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, Donna Miller (which may be an alias for Selina

Miller, a vexatious litigator who is not permitted to file

complaints in her own name without leave of Court - see, for

example, the staff note entered in Case No. 11-cv-352 on May 16,

2011, and the references to Selina Miller in the complaint), has

submitted a complaint and a motion for leave to proceed in forma

pauperis. Giving plaintiff the benefit of the doubt in terms of

whether she is Selina Miller, and taking into account her

financial information, the motion for leave to proceed in forma

pauperis (#1) is granted. However, it will be recommended that

the case be dismissed as frivolous under 28 U.S.C. §1915(e)(2).

I.

28 U.S.C. §1915(e)(2) provides that in proceedings in forma

pauperis, "[t]he court shall dismiss the case if ... (B) the

action ... is frivolous or malicious [or] fails to state a claim

on which relief can be granted...." The purpose of this section

is to prevent suits which are a waste of judicial resources and

which a paying litigant would not initiate because of the costs

involved. See Neitzke v. Williams, 490 U.S. 319 (1989). A

complaint may be dismissed as frivolous only when the plaintiff

fails to present a claim with an arguable or rational basis in

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law or fact. See id. at 325. Claims which lack such a basis

include those for which the defendants are clearly entitled to

immunity and claims of infringement of a legal interest which

does not exist, see id. at 327-28, and “claims describing

fantastic or delusional scenarios, claims with which federal

district judges are all too familiar.” Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992). A complaint may not be

dismissed for failure to state a claim upon which relief can be

granted if the complaint contains “enough facts to state a claim

to relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U. S. 544, 570 (2007). Pro se complaints are to be

construed liberally in favor of the pro se party. Haines v.

Kerner, 404 U.S. 519 (1972). The complaint will be evaluated

under these standards.

II.

Ms. Miller’s complaint names three defendants: Ruby

Lipscomb, the State of Ohio Counseling Board, and James Lipscomb. 

The only defendant mentioned in the section of the complaint

where Ms. Miller was asked to provide a statement of her claim is

Ruby Lipscomb. Her allegations, printed here exactly as they

appear in her complaint, are as follows:

1. Ruby Lipscomb states Donna Miller authorized

family counseling.

2. Ruby Lipscomb states Donna Miller authorized

cognitive therapy for family counseling.

3. Ruby Lipscomb states Selina Miller was treated

with cognitive therapy for a mental disorder.

4. Ruby Lipscomb states Selina Miller was treated

with cognitive therapy for a behavioral disorder.

5. Ruby Lipscomb states the excessive cognitive

therapy session grants fees to Selina Miller.

The prayer for relief seeks $400,000.00 in “excessive damages

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from cognitive therapy.” Ms. Miller invokes the Court’s

jurisdiction under 28 U.S.C. §1343.

It is not difficult to see that this complaint contains no

facts from which either a cause of action under federal law, or

jurisdiction under §1343 (which provides for federal jurisdiction

over claims for civil rights violations) could plausibly be

inferred. As noted, the names of two of the three named

defendants do not appear in the complaint’s allegations. Ruby

Lipscomb is not identified in any way in the complaint. Assuming

that she is a state actor, perhaps an employee of the entity

described as “State of Ohio Counseling Board” (there does not

appear to be any such agency, but there is an agency known as 

The Counselor, Social Worker and Marriage and Family Therapist

Board with offices on Broad Street in Columbus, whose primary

responsibility is to license counselors and social workers),

there are no facts describing how Ms. Lipscomb, in any official

capacity, violated Ms. Miller’s constitutional rights. 

The most favorable interpretation of the complaint -

although one which would require the Court to supply facts not

pleaded - is that Ms. Lipscomb falsely stated certain things

concerning Ms. Miller. But false statements by a state employee

do not ordinarily support a claim for the violation of

constitutional rights. See Paul v. Davis, 424 U.S. 693, 712

(1976)(rejecting a claim that “defamatory publications” made by a

government official deprived the target of those statements of

“any ‘liberty’ or ‘property’ interests protected by the Due

Process Clause”). Conversely, if the statements were true and

Ms. Miller’s concern is the publication of those statements to

others, not only has she not alleged such publication, but the

Constitution does not create any generalized privacy interest in

not having personal information disclosed to the public. See,

e.g., Miller v. Supreme Court of Ohio, 2011 WL 1691837, *2 (S.D.

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Ohio May 4, 2011)(rejecting plaintiff’s conclusory assertions of

invasion of privacy because “‘the Sixth Circuit has held that the

Constitution does not encompass a general right to nondisclosure

of private information,’” quoting Wilson v. Collins, 517 F.3d 421

429 (6th Cir. 2008)). On the other hand, if Ms. Lipscomb is

merely a private individual and Ms. Miller’s claim is based on

state law, the Court would not have jurisdiction because the

parties are not diverse (that is, they all appear to be citizens

of the State of Ohio). Either way, this complaint is

fundamentally lacking in allegations which invoke the Court’s

jurisdiction or which state a valid claim. It is therefore

subject to dismissal.

III.

Based on the foregoing, plaintiff’s motion for leave to

proceed in forma pauperis (#1) is granted. Further, it is

recommended that this action be dismissed under 28 U.S.C.

§1915(e) as frivolous and for lack of subject-matter

jurisdiction.

IV.

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

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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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