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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LaShawn Pettus-Brown, 

Plaintiff, 

 Civil Action 2:18-cv-83 

 v. Judge George C. Smith 

 Magistrate Judge Elizabeth P. Deavers 

State of Ohio, 

Defendant. 

REPORT AND RECOMMENDATION

Plaintiff, a state inmate under the supervision of the Ohio Department of Rehabilitation and 

correction, brings this prisoner civil rights action under 42 U.S.C. § 1983. (ECF No. 1-1.) 

Plaintiff seeks leave of Court to proceed in forma pauperis in this matter. (ECF No. 1.) On 

February 1, 2018, the Undersigned conducted an initial screen of Plaintiff’s Complaint as required 

by 28 U.S.C. §1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s 

Complaint, or any portion of it, which 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. § 1915A(b). (ECF No. 2.) On March 14, 2018, the Court recommitted this matter for 

further analysis. (ECF No. 7.) For the reasons that follow, the Undersigned RECOMMENDS

that Plaintiff’s Motion be DENIED for failure to state any claim on which relief may be granted. 
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I.

 Congress has authorized the sua sponte dismissal of complaints that fail to state a claim 

upon which relief maybe granted. 2 8 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). 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 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 v. Lappin, 630 F.3d 468, 

470-71 (6th Cir. 2010) (“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 federal court has limited subject matter jurisdiction. “The basic statutory grants of 

federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for 

‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’ 

jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction 

is invoked when a plaintiff pleads a claim “arising under” the federal laws, the Constitution, or 

treaties of the United States. Id. (citation omitted). For a federal court to have diversity 

jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means that 

each plaintiff must be a citizen of a different state than each defendant, and the amount in 

controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). 

II. 
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 According to the Complaint, Plaintiff was indicted by a grand jury in Hamilton County 

on certain felony charges. (ECF No. 1-1 at 8.) Plaintiff alleges that he we not properly 

charged and that he was improperly denied a “preliminary hearing” prior to his indictment. 

(Id.) Plaintiff posits that it was a violation of his constitutional rights to indict him via grand 

jury proceedings, rather than through a “direct hearing” at which Plaintiff could have personally 

appeared. (Id.) Plaintiff seeks injunctive and declaratory relief against the state of Ohio. (Id. 

at 10-12, 15-16.) 

 The Eleventh Amendment to the United States Constitution precludes a private party 

from bringing suit against a state or any of the state’s agencies unless the state has expressly 

consented to the suit or Congress has properly abrogated the state’s sovereign immunity. 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996); Alabama v. Pugh, 438 U.S. 781 , 782 

(1978). “Ohio has not waived its sovereign immunity in federal court.” Mixon v. Ohio, 193 F. 

3d 389, 397 (6th Cir. 1999). And “Congress did not intend to override well-established 

immunities or defenses under the common law” by enacting § 1983. Will v. Mich. Dept. of State 

Police, 491 U.S. 58, 67 (1989). Accordingly, there are very limited exceptions to state and state 

actor immunity here. Cady v. Arenac Cnty., 574 F.3d 334, 344 (6th Cir. 2009). First, a 

plaintiff may bring a claim against a state official acting in his or her official capacity if the 

plaintiff seeks only “prospective injunctive or declaratory relief.” Id. (citing Papasan v. Allain, 

478 U.S. 265, 276-78 (1986)). Second, a plaintiff may bring a claim for monetary damages 

against a state official in his or her individual capacity. See Kentucky v. Graham, 473 U.S. 159, 

165- 68 (1985); Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 457 (6th Cir. 1998). 
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 Because none of the limited exceptions to Eleventh Amendment immunity apply here, 

the Undersigned finds that Plaintiff has failed to state a claim on which relief may be granted. 

III. 

 For the reasons explained above, Plaintiff’s Complaint fails to assert any claim on which 

relief may be granted. It is therefore RECOMMENDED that the Court dismiss Plaintiff’s 

claims pursuant to Section 1915(e)(2). Accordingly, it is also RECOMMENDED that 

Plaintiff’s Motion for Leave to Exceed Allotted Discovery be DENIED as MOOT. (ECF No. 

6.) 

IV. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 
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magistrate judge’s report and recommendation). Even when timely objections are filed, appellate 

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th 

Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the issues 

of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). 

Date: March 21, 2018 /s/ Elizabeth A. Preston Deavers 

 ELIZABETH A. PRESTON DEAVERS 

 UNITED STATES MAGISTRATE JUDGE