UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

FRANKLIN DAVID HARRIS JR., et al.,

Case No. 1:17-cv-540

Plaintiffs,

Barrett, J.

v. Bowman, M.J.

DANIEL COOLEY, et. al,

Defendants.

OPINION AND ORDER

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

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

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). 

I. Introduction

On August 28, 2017, this Court permitted Plaintiffs to file their pro se complaint in 

forma pauperis, or without payment of a filing fee. Plaintiffs, who live in Portsmouth, 

Ohio, are relatively experienced pro se litigants, having pursued a number of cases in 

this federal Court, most of which have been filed both pro se and in forma pauperis.1

Plaintiffs’ 26-page single-spaced typed complaint alleges that they are AfricanAmerican homeowners who reside at 1925 Timmonds Avenue in Portsmouth, who have 

 1

See, e.g., Case No. 1:89-cv-145 (civil rights); Case No. 1:91-mc-349; Case No. 1:91-mc-350; Lead Case 

No. 92-cv-323 (employment discrimination); Related Member Case No.1:92-cv-324 (employment 

discrimination), Member Case No. 1:93-cv-401 (employment discrimination); Case No. 1:93-mc-93; Case 

No. 1:95-cv-29 (employment discrimination); Case No. 1:97-cv-156 (civil rights); Case No. 1:02-cv-475 

(Fair Housing Act); Case No. 1:05-cv-84 (employment discrimination); Case No. 1:11-cv-179 

(employment discrimination); 
2

resided in their home since October 20, 1994. (Doc. 1-3 at 1). Plaintiffs allege that the 

three identified individual Defendants are Caucasian neighbors who reside at 1921 

Timmonds Avenue. Plaintiffs’ complaint generally relates a series of escalating and 

ongoing conflicts with the Defendants, primarily over a privacy fence and gate between 

the two properties. The complaint details a series of events that are alleged to have 

occurred on 13 separate dates between August 7, 2016 and July 17, 2017. 

Plaintiffs allege that their neighbors have vandalized Plaintiffs’ personal and real 

property and/or caused the neighbors’ children or “unknown white” persons to vandalize 

Plaintiffs’ property. Plaintiffs allege that Defendants filed a complaint about the fence 

with the “White Director of Portsmouth City Engineer Office” as a threat “to intimidate, 

harass, coerce” and “terrify[y]” Plaintiffs, (Doc. 1-2 at 11), and that Defendants similarly 

contacted the “White Portsmouth Mayor,” and contacted “White Police Officers” to make 

complaints about the fence and/or Plaintiffs and to cause Plaintiffs to suffer “fear, terror, 

horror, fright.” (Doc. 1-2 at 12). Plaintiffs allege that the incidents both individually and 

in combination constitute violations of the Fair Housing [Act], and of Plaintiffs’ “federal 

civil rights.” Plaintiffs seek punitive damages, injunctive relief (including but not limited 

to a temporary restraining order and temporary and permanent injunctions), and 

attorney’s fees and costs. Plaintiffs claim that this Court has pendant jurisdiction over 

their “Ohio Civil Rights claims” under the Ohio Fair Housing Act.” (Doc 1-2 at 2).

Based upon the Plaintiffs’ representation that their Chapter 13 bankruptcy 

proceeding was ongoing, the undersigned conditionally granted Plaintiffs’ application to 

proceed in forma pauperis, but requested a status report from the Trustee to determine 

whether Plaintiffs should be permitted to proceed as the real parties in interest. The 
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Court expressly reserved full screening of the complaint under 28 U.S.C. § 1915(e) 

“pending a more complete review of the threshold standing issues presented by the 

complaint.” 

On September 5, 2017, the Trustee filed a status report, indicating that, because 

the claims alleged in the complaint filed in this Court arose post-petition, and under 

controlling bankruptcy law, Plaintiffs are the real parties in interest for purposes of their 

claims against their neighbors. (Doc. 5). The Trustee’s report indicates that the Trustee 

has charged the debtors’ bankruptcy counsel with regular reporting on the status of their 

claims against the Cooleys, insofar as the Trustee “would have input on” the disposition 

of any damages that may be recovered. (Doc. 5 at 5). Having resolved the threshold 

issues, the undersigned now undertakes full review of the complaint under 28 U.S.C. § 

1915(e).

II. Analysis

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, 112 S.Ct. 1728, 118 

L.Ed.2d 340 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 

104 L.Ed.2d 338 (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. Id.; 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, 109 S.Ct. 
4

1827, 104 L.Ed.2d 338 (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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Estelle v. 

Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). By the same token, 

however, the 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, 

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Hill, 630 F.3d at 470–

71 (“dismissal standard articulated in Iqbal 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 
5

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, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). 

Although a complaint need not contain “detailed factual allegations,” it must provide 

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 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.” Id. 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).

Based upon the above standards, it remains a very close issue as to whether 

Plaintiffs have stated any cognizable federal claims. Plaintiffs’ allegations – while 

indicative of abhorrent behavior and incivility between neighbors – may fall short of the 

type of discriminatory conduct that Congress intended to regulate under the Fair 

Housing Act. Accord Franco-Ward v. Nations Credit Corp., 2000 WL 875894 (6th Cir., 

June 20, 2000) (affirming dismissal of retaliation and intimidation claims under 42 

U.S.C. §3617, because plaintiffs’ allegations of racial discrimination were conclusory 

and unsupported by factual allegations to support claims). However, under the liberal 

pleading standards applied to pro se pleadings, as well as the extremely low threshold 

used in screening cases under 28 U.S.C. § 1915(e), the undersigned will allow Plaintiff’s 

complaint to proceed at this preliminary stage, and will direct service upon the 

Defendants.
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As grounds for the assertion of this Court’s jurisdiction over their complaint, 

Plaintiffs assert that the Defendants have violated the Fair Housing Act. Plaintiffs’ 

complaint alleges that their neighbors’ conduct towards Plaintiffs constituted race-based 

discrimination not because of any overt or direct evidence of such discriminatory 

animus, but based upon indirect evidence. Specifically, Plaintiffs allege that they are 

African-American, while Defendants are Caucasian, and that Defendants made no 

similar complaints to authorities and made no similar threats against other white 

neighbors who had a similar privacy fence/gate that appears to be the source of

contention between Plaintiffs and Defendants. 

The primary provisions of the Fair Housing Act, as amended, generally prohibit 

discrimination in the sale or lease of real property. Since Plaintiffs allege that they 

purchased their home nearly 23 years ago and have continually resided in that home 

since their purchase, they do not seek recourse under the primary substantive 

provisions of the FHA. Instead, Plaintiffs rely upon 42 U.S.C. § 3617, which makes it 

unlawful “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of 

any rights protected by the FHA's substantive provisions. 42 U.S.C. § 3617. 

To make out a prima facie case under Section 3617, a plaintiff must show 

“more than a ‘quarrel among neighbors' or an ‘isolated act of

discrimination,’ but rather ... a ‘pattern of harassment, invidiously 

motivated.’ ” Bloch v. Frischholz, 587 F.3d 771, 783 (7th Cir.2009) 

(quoting Halprin v. Prairie Single Family Homes of Dearborn Park 

Ass'n, 388 F.3d 327, 330 (7th Cir.2004)). Prohibited interference is not 

limited to discrimination during the acquisition of a home, but “can take 

place at any time,” including “post-purchase,” as is potentially implicated 

here. E.–Miller v. Lake Cnty. Highway Dep't, 421 F.3d 558, 562 (7th 

Cir.2005).

Novak v. Levenfeld Pearlstein, 2014 WL 4555581, at *6 (N.D.Ill., Sept. 15, 2014). 

Courts use the burden shifting analysis of McDonnell Douglas v. Green, 411 U.S. 792 
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(1973), to evaluate claims of intentional discrimination under the FHA. Michigan 

Protection and Advocacy Service, Inc. v. Babin, 799 F. Supp. 695, 706 (E.D. Mich. 

1992), affirmed 18 F.3d 337 (6th Cir.1994) (“a successful claim under § 3604 is not a 

prerequisite to the bringing of a claim under § 3617”). 

The Trustee reports, and the undersigned’s review of other court records 

confirms, that the named Defendants herein, through counsel, filed suit against Plaintiffs 

in Scioto County State Court on May 24, 2017, a date that precedes the date that 

Plaintiffs initiated this federal lawsuit. See Cooley v. Harris, Case No. 17CIH00071 

(Scioto County Court of Common Pleas). The undersigned has reviewed the publicly 

available docket sheet of the state court action, but not the actual complaint. The 

Trustee describes the Cooleys’ Complaint as seeking “removal of a fence that straddles 

a property line, perpendicularly, and a determination of property line boundaries...” 

(Doc. 5 at 1). The Trustee additionally reports the existence of a third related adversary 

proceeding recently filed by Plaintiffs in Bankruptcy Court, Case No. 1:17-ap-01041. 

Mr. and Mrs. Harris are represented by counsel in the lead bankruptcy case, but 

not in their recently filed adversary proceeding concerning their dispute with the 

Cooleys.2 Plaintiffs also proceed pro se as defendants in the Scioto County state court 

case. 

The Trustee concludes that “[t]he question now before the Bankruptcy Court, the 

U.S. District Court, and Scioto Common Pleas is which court is the proper venue for 

 2

The Bankruptcy Trustee has encouraged the Mr. and Mrs. Harris to “consider engaging competent 

counsel” and has explained how Local Bankruptcy Rules of the Southern District of Ohio describe how 

counsel should be engaged and officially appointed.” (Doc. 5 at 6). Unlike the Bankruptcy Rules, no 

similar rules of this Court provide for the appointment of counsel for civil litigants. There is no 

constitutional right to the appointment of counsel in civil cases, and such appointments by this Court are 

exceedingly rare.
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consideration of the Harris claims against the Cooleys, and where the Cooleys’ property 

questions should be decided.” (Doc. 5 at 6). However, because review is limited at this 

point to the screening the complaint under § 1915(e), the undersigned finds it 

inappropriate to resolve that question at this stage.

The undersigned’s decision to give the Plaintiffs the benefit of the doubt at this 

preliminary screening stage should not be viewed as foreclosing any affirmative 

defenses the Defendants may be able to raise in a motion to dismiss. Rather, it is 

merely an acknowledgement that under 28 U.S.C. § 1915(e), review is limited to the

complaint filed in this Court, without the benefit of a response by an opposing party or 

any briefing at all. Under liberal pleading standards, the undersigned cannot conclude 

at this stage that the complaint is so lacking in plausibility that it should be dismissed 

without requiring the Defendants to answer. 

The undersigned’s preliminary review of post-acquisition claims of discriminatory 

interference or harassment under 42 U.S.C. § 3617 reveals relatively limited case law 

on the issues presented, but confirms that a neighbor-against-neighbor claim may exist 

under some circumstances. See generally Wells v. Rhodes, 928 F. Supp.2d 920, 932-

933 (S.D. Ohio 2013) (holding, despite recognition that “the FHA was not designed ‘to 

convert every quarrel among neighbors in which a racial or religious slur is hurled into a 

federal case,’” that evidence of “burning a cross on front lawn with ‘KKK will make you 

pay’ and the N-word written on it, is certainly interference (or perhaps more accurately a 

threat or intimidation) within the broad meaning of § 3617.”) (internal citations omitted); 

contrast Sheikh v. Rabin, 565 Fed. Appx. 512 (7th Cir. 2014)(dismissing FHA claims for 

failure to state any claim of interference under FHA); French v. Hornsby, 2006 WL 
9

686375 (M.D. Tenn, March 13, 2006) (holding there was “absolutely no application of 

the Fair Housing Act” to property line dispute between neighbors who had previously 

litigated their dispute in state court); Diggs v. Paragon Management Group, Inc., 2014 

WL 1302504 (E.D. Tenn. March 28, 2014) (granting motion to dismiss FHA claims for 

failure to state a claim of race discrimination).

III. Conclusion and Order

For the reasons explained above, IT IS ORDERED THAT:

1. The Clerk of Court shall transmit the summons forms to the United States 

Marshal, who shall serve a copy of the complaint, the summons, and this 

Order upon the Defendants as directed by Plaintiff. All costs of service shall 

be advanced by the United States;

2. Plaintiff shall serve upon each Defendant or, if appearance has been entered 

by counsel, upon Defendant’s attorney(s), a copy of every further pleading or 

other document submitted for consideration by the Court. Plaintiff shall 

include with the original paper to be filed with the clerk of court a certificate 

stating the date a true and correct copy of any document was mailed to 

Defendants or their counsel. Any paper received by a district judge or 

magistrate judge which has not been filed with the clerk or which fails to 

include a certificate of service will be disregarded by the Court;

3. A copy of this Order shall be served on nonparty Margaret A. Burks, Esq., 

Chapter 13 Trustee, with additional courtesy copies to be transmitted to the 

Clerk of the Bankruptcy Court, for consideration in connection with U.S. 

Bankruptcy Case No. 15-12647 and/or Case No. 1:17-ap-01041, and to the 
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Scioto County Clerk of Court for consideration in connection with Cooley v. 

Harris, Case No. 17CIH00071.

3

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge

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The undersigned greatly appreciates the efforts of the Trustee to respond to this Court’s request for a 

status report, and recognizes that the Trustee will not be made party to this proceeding, but will rely upon 

Plaintiffs’ bankruptcy counsel to keep the Trustee updated on the course of this case. No further copies 

of proceedings in this case will be transmitted to the Trustee, to the Bankruptcy Court, or to the Scioto 

County Clerk of Court beyond this Order. If desired, any non-party (including bankruptcy counsel) may 

use the cm/ecf system or PACER to obtain copies of all publicly available documents filed in this case.