by Cincinnati police who advised him of a warrant for disciplining his daughter and to turn
himself in. (Doc. 1 at 9). As relief, plaintiff seeks $150,000 in damages. (Doc. | at 11).

Plaintiff's allegations are insufficient to state a claim with an arguable basis in law over
which this federal Court has subject matter jurisdiction.

To the extent plaintiff may be alleging any state law claims, it is clear from the face of
the complaint that the Court lacks diversity jurisdiction under 28 U.S.C. § 1332(a). In order for
diversity jurisdiction pursuant to § 1332(a) to lie, the citizenship of the plaintiff must be “diverse
from the citizenship of each defendant” thereby ensuring “complete diversity.” Caterpillar Inc.
v. Lewis, 519 U.S. 61, 68 (1996) (citing State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523,
531 (1967)); see also Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967);
Winningham y. North American Res. Corp., 809 F. Supp. 546, 551 (S.D. Ohio 1992). In this
case, both plaintiff and the named defendants are domiciled in Ohio. Therefore, this Court lacks
subject matter jurisdiction on the basis of diversity of citizenship.

District courts also have original federal question jurisdiction over cases “arising under
the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In order to invoke the
Court’s federal question jurisdiction pursuant to 28 U.S.C. § 1331, plaintiff must allege facts
showing the cause of action involves an issue of federal law. See Metro. Life Ins. Co. v. Taylor,
481 U.S. 58, 63 (1987).

To the extent plaintiff may be alleging a federal claim of malicious prosecution against
the City of Cincinnati, plaintiff's complaint fails to state a claim for relief. Municipalities cannot
be held vicariously liable under 42 U.S.C. § 1983 based on the theory of respondeat superior for
injuries inflicted solely by their employees or agents. See Iqbal, 556 U.S. at 676; Monell v. New

York City Dep't of Soc. Services, 436 U.S, 658, 690-92 (1978); Gregory v. Shelby Cnty.,


Accordingly, in sum, the Court concludes that the plaintiff's complaint is subject to

dismissal for failure to state a claim upon which relief may be granted.
IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff's complaint be DISMISSED with prejudice.

2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,

803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277

(6th Cir. 1997).

Date:_/Z LELLZ Fitin 2 Lthon
Karen L. Litkovitz, Magistrate I4dge

United States District Court


and abandoned. Plaintiff was convicted and his subsequent appeal was denied. (Doc. | at 7).
Plaintiff states that in May 2017, he met with “inspector James” and asked if the building was

scheduled to be torn down. Plaintiff was told it was not, but that he was required to obtain the

VBML. Plaintiff alleges:
[I]t became apparent city is coercing property owners in low-income
communities, to acquire “VBML” when they acquire or wish to renovate their
property and is only given ninety days and if he fails to complete his project in
ninety days city then arrest owner for failing to comply, and order him to acquire
nuisance ordinance.

(Doe. | at 8).

Plaintiff alleges that on May 31, 2016, he appeared in court for a probation violation and
pled no contest. He was ordered “to report to home incarceration indefinitely until [he] decide[d]
to allow [a] housing inspection.” (/d.). Plaintiff states he absconded because he has “no
constitutional rights of owning real estate. ...” (/d.). Plaintiff alleges that on June 16, 2016:

City building inspectors, Sheriff Department, Health Department, SCPA, Fire

Department, and just as i predicted city water works participated in raid and this

was going to be part of the pretext neighbor tell me that they waited for me to pull

off before entering building, removed dog he was not part of probation, reason was

because i refused to report to probation indefinitely, they had right to enter
building, because i plead no contest and refused to allow warrant less housing

inspection.
(/d.). The following day, plaintiff called probation officer Tom Griffin, who denied participating
in the raid and advised plaintiff to report to the sheriff's department. (/d.). Several months later,
plaintiff learned that his dog had been euthanized by the SPCA without notice to plaintiff. (Doc.
lat 11).

Plaintiff alleges he spoke with Dave Hartinger of the City of Cincinnati Department of
Building and Inspection on January 18, 2017 and was advised he could pick up his keys anytime

and he would later be billed for the cost. He also alleges that on August 29, 2017, he was visited


Tennessee, 220 F.3d 433, 441 (6th Cir. 2000); see also Davis v. Bexley Police Dept., No. 2:08-
cv-750, 2009 WL 414269, at *2 (S.D. Ohio Feb. 17, 2009) (“A plaintiff may not rely on the
doctrine of respondeat superior to find a government entity liable under § 1983 when the claim
is founded solely on an allegation that its agent caused the injury.”). To state a claim for relief
under § 1983 against a municipality, the plaintiff must allege that his “injuries were the result of
an unconstitutional policy or custom” of the municipality. Matthews v. Jones, 35 F.3d 1046,
1049 (6th Cir. 1994); see also Monell, 436 U.S. at 694; Doe v. Claiborne Cnty., 103 F.3d 495,
507 (6th Cir. 1996). Cf Polk County v. Dodson, 454 U.S. 312 (1981) (municipal policy must be
“moving force” behind constitutional deprivation). Municipalities and other governmental
entities cannot be held responsible for a constitutional deprivation unless there is a direct causal
link between a policy or custom and the alleged deprivation. Monell, 436 U.S. at 691; Deaton v.
Montgomery Cnty., Ohio, 989 F.2d 885, 889 (6th Cir. 1993).

In this case, plaintiff has alleged no facts indicating that the City of Cincinnati violated
his constitutional rights pursuant to a policy or custom of the City. In the absence of such
allegations, plaintiff has failed to state an actionable claim for relief based on the theory of
municipal liability. See Monell, 436 U.S. at 693-94,

Similarly, to the extent plaintiff names as defendants the City of Cincinnati Department
of Building and Inspections, Hamilton County Adult Probation, Hamilton County Sheriff
Department Electronic Monitoring Division, Hamilton County Animal Warden , City of
Cincinnati Health Department, Cincinnati Fire Department, Hamilton County Sheriff
Department, and the City of Cincinnati Code Enforcement, his complaint fails to state a claim for
relief against these entities. These departmental units are not sui juris; they are merely sub-units

of the city and county they serve. See, e.g., Jones v. Marcum, 197 F. Supp.2d 991, 997 (S.D.


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TERRY WALKER, Case No. 1:17-cv-575
Plaintiff, Dlott, J.
Litkovitz, M.J.
vs.

CITY OF CINCINNATI DEPT.
OF BUILDING AND INSPECTIONS, et al.,

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TERRY WALKER, Case No. 1:17-cv-575
Plaintiff, Dlott, J.
Litkovitz, M.J.
vs.
CITY OF CINCINNATI DEPT.
OF BUILDING AND INSPECTIONS, et al., ORDER AND REPORT AND
Defendants. RECOMMENDATION

Plaintiff Terry Walker, a resident of Cincinnati, Ohio, brings this action against the City
of Cincinnati Department of Building and Inspections, Hamilton County Adult Probation,
Hamilton County Sheriff Department Electronic Monitoring Division, Hamilton County Animal
Warden, City of Cincinnati Health Department, Cincinnati Fire Department, Hamilton County
Sheriff Department, City Manager Harry Black, City of Cincinnati Senior Assistant Prosecutor
Keith Forman, Sgt. Todd Musgrove of the Hamilton County Justice Center Electronic
Monitoring Division, Probation Officer Tom Griffin, City of Cincinnati Code Enforcement, and
SCPA Cincinnati alleging a violation of his rights. By separate Order, plaintiff has been granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

This matter is before the Court on plaintiff's motion to amend the complaint to clarify
that he is seeking relief solely on his own behalf and not on behalf of “Halcyon Real Estate and
Construction Services,” an entity plaintiff Walker named in the original complaint and of which
Mr. Walker is the agent. (Doc. 4). Plaintiffs motion is GRANTED and the Court will construe
the complaint, as amended, as seeking relief solely on behalf of Mr. Walker.

This matter is also before the Court for a sua sponte review of plaintiffs complaint to

determine whether the complaint, or any portion of it, should be dismissed because it is


Ohio 2002) (citing Williams v. Dayton Police Dept., 680 F. Supp. 1075, 1080 (S.D. Ohio 1987)).
In any event, plaintiff's claims against the various departmental units of the City of Cincinnati
and Hamilton County are in reality official capacity suits against the city and county, the entities
of which the departmental units are agents. Because plaintiff's complaint does not allege any
facts showing that these departmental units acted pursuant to a policy or custom of the City of
Cincinnati or Hamilton County, plaintiffs complaint should be dismissed as to these defendants.
Monell, 436 U.S. at 693-94.

Plaintiff's complaint also fails to state a claim for relief against defendants City Manager
Harry Black, City of Cincinnati Senior Assistant Prosecutor Keith Forman, Sgt. Todd Musgrove
of the Hamilton County Justice Center Electronic Monitoring Division, and Probation Officer
Tom Griffin. Plaintiff's complaint fails to allege facts showing how these named defendants
were somehow involved in any alleged violation of his constitutional rights. In the absence of
any factual allegations specifically directed against these defendants, plaintiff has failed to state a
claim for relief.

Finally, plaintiffs complaint fails to state a claim for relief against the SPCA of
Cincinnati. Plaintiff has not alleged facts showing the SPCA of Cincinnati acted under color of
state law to give rise to a cause of action under § 1983. See Boutte v. San Francisco SPCA
Animal Hosp., No. C 07-5661, 2008 WL 205277, at *2 (N.D. Cal. Jan. 23, 2008). In any event,
plaintiff has failed to state a plausible procedural due process violation against the SPCA because
he has failed to plead that his “state remedies for redressing the wrong are inadequate.” Vicory v.
Walton, 721 F.2d 1062, 1066 (6th Cir. 1983). See also Hudson v. Palmer, 468 U.S. 517 (1984);
Daily Services, LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014); Jefferson v. Jefferson

County Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004).


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)(B).

In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Jd.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the
plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th
Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or
when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490
U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d
at 1199. The Court need not accept as true factual allegations that are “fantastic or delusional”
in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). A complaint filed
by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the

N


complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Jgbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Jgbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” /d. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

Plaintiff's pro se complaint is difficult to decipher. As best the Court can discern,
plaintiff is the owner of a building that was declared a nuisance by the City of Cincinnati.
Plaintiff alleges he was subjected to malicious prosecution because he refused to allow a housing
inspection and failed to acquire a VBML (Vacated Building Maintenance License), which
plaintiff describes as a “nuisance building bond.” (Doc. 1 at 4). Plaintiff alleges he was charged

with a misdemeanor offense and at the trial the City “lied” by stating the property was vacant