UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES W.D. WILLIAMS, IV, Case No. 1:18-cv-518

Plaintiff,

Barrett, J.

vs Bowman, M.J.

WALMART’S, PRESIDENT, et al., REPORT AND

Defendants. RECOMMENDATION

Pro se plaintiff, an inmate at the Clermont County Jail, filed the above-captioned action 

in the Hamilton County Court of Common Pleas on June 26, 2018, against “Walmarts,

President” “Walmarts, Vice President,” “Walmarts, Store Security Officers,” “Walmarts, Store 

Management,” “Walmarts, Store Cashier,” and “John/Jane Does 1-10.” (Doc. 2). Plaintiff 

alleges that he was mistakenly stopped for shoplifting at a Wal-Mart store in Cincinnati.

1

 He 

asserts state law claims of “Wrongful or Illegal Detainment,” “Negligence,” “Slander,” and 

“Defamation of Character” and a federal claim of “Cruel and Unusual Punishment.” (Doc. 2, at 

PageID 25). Defendants Wal-Mart’s President, Wal-Mart’s Vice President, Wal-Mart’s Store 

Security Officers, Wal-Mart’s Store Management, and Wal-Mart’s Store Cashier filed a Notice 

of Removal of the action to the United States District Court on July 26, 2018, based on federal 

question jurisdiction for the federal claim, 28 U.S.C. § 1331, and supplemental jurisdiction for 

the state law claims, 28 U.S.C. § 1367. (Doc. 1, at PageID 2; Doc. 1-5, at PageID 21).

This matter is before the Court for a sua sponte review of the Notice of Removal, which 

the Court construes as a petition for removal of a state court action to this federal court, to 

determine whether the Court has jurisdiction over this matter. See 28 U.S.C. § 1915(e)(2)(B); 

Fed. R. Civ. P. 12(h)(3).

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It appears that plaintiff is currently incarcerated at the Clermont County Jail on unrelated charges.

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I. Removal

Removal is governed by 28 U.S.C. § 1441 which provides in relevant part: “[A]ny civil 

action brought in a State court of which the district courts of the United States have original 

jurisdiction, may be removed by the defendant or the defendants, to the district court of the 

United States for the district and division embracing the place where such action is pending.” 28 

U.S.C. § 1441(a). Thus, “[o]nly state-court actions that originally could have been filed in 

federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 

482 U.S. 386, 392 (1987). The defendant carries the burden of showing that removal is proper 

and that the federal court has original jurisdiction to hear the case. See Village of Oakwood v. 

State Bank and Trust Co., 539 F.3d 373, 377 (6th Cir. 2008); Ahearn v. Charter Township of 

Bloomfield, 100 F.3d 451, 453-54 (6th Cir. 1996). The removal statute is to be strictly construed 

and where jurisdiction is in doubt, the matter should be remanded to the state court. See Brierly 

v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999). 

To remove a civil action from state court to federal court, a defendant must file in the 

district court a notice of removal containing a short and plain statement of the grounds for 

removal, along with a copy of all pleadings and orders served upon the defendant, within thirty 

days of receiving the complaint or summons, or within thirty days of receiving an amended 

pleading, motion, order, or “other paper” from which the removability of the action may first 

be ascertained. 28 U.S.C. § 1446(a), (b). A case may be remanded at any time prior to final 

judgment if it appears the federal court lacks subject matter jurisdiction over the case. 28 

U.S.C. § 1447(c). 

This Court finds that removal was proper in this case. Defendants Wal-Mart’s President, 

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Wal-Mart’s Vice President, Wal-Mart’s Store Security Officers, Wal-Mart’s Store Management, 

and Wal-Mart’s Store Cashier2 state that they received a copy of plaintiff’s complaint on June 

30, 2018. (Doc. 1, at PageID 1).3 They filed their Notice of Removal on July 26, 2018, within 

the thirty-day time limit imposed by 28 U.S.C. § 1446(a), (b). Further, plaintiff’s complaint 

raises a federal question by asserting, pursuant to 42 U.S.C. §§ 1981, 1982, 1983 and 1985, that 

he was subjected to “cruel and unusual punishment.” See Metro. Life Ins. Co. v. Taylor, 481 

U.S. 58, 63 (1987) (applying the “well-pleaded complaint” rule to determine whether a claim 

arises under federal law). See also Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 

U.S. 1, 27-28 (1983) (applying “well-pleaded complaint” rule to “those cases in which a 

well-pleaded complaint establishes either that federal law creates the cause of action or that the 

plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal 

law”). Where a case is removed because of a federal question, a federal district court acquires 

subject matter jurisdiction over supplemental state law claims under 28 U.S.C. § 1367(a). 

Accordingly, and in the absence of any objection from plaintiff, the Court finds it has 

subject matter jurisdiction to consider the matter and that it is removable from state court. 

II. Analysis

Having found that removal is proper, this matter is now before the Court for a sua 

 2

Although the John-Doe defendants did not join in the Notice of Removal, “the general rule that all defendants must 

join in a notice of removal may be disregarded where, as here, the non-joining defendants are unknown.” Green v. 

America Online, 318 F.3d 465, 470 (3d Cir. 2003). 3

Defendants dispute that proper service of process was effectuated in this case. (Doc. 1, at PageID 1). Because this 

Court finds that dismissal of plaintiff’s federal claim is appropriate on other grounds and declines to exercise 

supplemental jurisdiction over plaintiff’s remaining state-law claims, the Court need not reach the issue of the 

sufficiency of service of process. If they so choose, defendants may raise this issue in state court upon remand. See 

Chiancone v. City of Akron, No. 5:11-cv-337, 2011 WL 4436587, at *5 (N.D. Ohio Sept. 23, 2011) (“Removal, 

however, does not waive any defenses that a defendant may have.”) (citing Ditkof v. Owens-Illinois, Inc., 114 F.R.D. 

104, 105 (E.D. Mich. 1987) (holding that removal did not waive the defendant’s objection that he had never been 

served with process)).

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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. See Prison 

Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2). See McGore v. Wrigglesworth, 

114 F.3d 601, 608 (6th Cir. 1997) (“A district court is required to screen all civil cases brought 

by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or 

is represented by counsel as the statute does not differentiate between various civil actions 

brought by prisoners”), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206 

(2007).

A. Legal Standard

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 v. Hernandez, 504 U.S. 25, 32 (1992); 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 

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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, 630 F.3d at 470-71 

(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a 

claim” under, in relevant part, § 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 wellpleaded 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.” 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).

B. Plaintiff’s Complaint

Plaintiff alleges that in late 2017 or early 2018 he was shopping with his fiancé’s two 

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young grandchildren at a Wal-Mart store in Cincinnati, Ohio. He alleges that one of the children 

pulled the tag off of some shoes, that he notified the cashier of the removed tag before checking 

out, and that the cashier indicated that it would not be a problem. Plaintiff claims that he then 

paid for the merchandise but was stopped on the way out of the store by store security officers 

for suspected shoplifting. He alleges that he and the children were detained in a small room at 

the front of the store until the police arrived. Plaintiff alleges that the police reviewed the 

“cameras” and “cleared” him. Plaintiff further alleges that he then paid for the shoes4 and that 

store management apologized, “cleared,” and released him. He claims that both he and the 

children were upset by the events. (Doc. 2, at PageID 25-26). 

C. Plaintiff’s Federal Claim Should Be Dismissed

For the below reasons, plaintiff has failed to state a federal claim for relief under 42 

U.S.C. §§ 1981, 1982, 1983 and 1985. (Doc. 2, at PageID 28). 

The Court first considers plaintiff’s claim under § 1981 and § 1982. Section 1981 

encompasses racial discrimination in contractual relationships and § 1982 addresses 

discrimination in property transactions. See 42 U.S.C. §§ 1981, 1982. See also Morris v. Office 

Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). Neither of these statutes are relevant to plaintiff’s 

claims of wrongful detainment at Wal-Mart. 

Nor has plaintiff stated a claim under 42 U.S.C. § 1985. Subsection (1) of § 1985 

addresses conspiracies to prevent an officer from performing his or her duties. 42 U.S.C.

§ 1985(1). Subsection (2) addresses conspiracies to obstruct justice or to intimidate a witness. 

 4

It is not clear from the complaint whether plaintiff alleges that he paid for the shoes again or that he thought he had 

previously paid for then. (See Doc. 2, at PageID 26) (“Then plaintiff paid for the other boots or shoes as he had 

plenty of money, thought they was already paid for and he wanted his grandbabies to have them.”).

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42 U.S.C. § 1985(2). Subsection (3) addresses conspiracies to deprive persons or classes of 

persons of the equal protection of the laws. 42 U.S.C. § 1985(3). None of the subsections of 

§ 1985 is applicable to plaintiff’s claim. Further, § 1985 requires a showing of a conspiracy 

between two or more persons. Plaintiff has failed to plead a conspiracy in this case. See 

Ashiegbu v. Purviance, 76 F. Supp.2d 824, 830 (S.D. Ohio 1998) (stating that a plaintiff must 

plead a civil rights conspiracy charge with factual specificity).

Similarly, plaintiff has failed to state a claim under 42 U.S.C. § 1983. To recover under 

§ 1983, the plaintiff must allege “(1) deprivation of a right secured by the federal Constitution or 

laws of the United States, and (2) that the deprivation was caused by a person while acting under 

color of state law.” Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991). Generally, a claim 

brought against private parties acting in their individual capacities is not actionable under § 1983. 

Lindsey v. Detroit Entm’t, LLC, 484 F.3d 824, 827 (6th Cir. 2007). However, “a private actor 

acts under color of state law when its conduct is ‘fairly attributable to the state.’” Id. (quoting 

Romanski v. Detroit Entm’t, LLC., 428 F.3d 629, 636 (6th Cir. 2005)). 

The Sixth Circuit applies three tests developed by the Supreme Court to determine the 

existence of state action in a particular case: (1) the public function test, (2) the state compulsion 

test, and (3) the symbiotic relationship or nexus test. Collyer v. Darling, 98 F.3d 211, 232 (6th

Cir. 1996). The public function test requires that a private entity “exercise powers which are 

traditionally reserved to the state, such as holding elections . . . or eminent domain.” Wolotsky v. 

Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (internal citations omitted). The state compulsion 

test “requires ‘proof that the state significantly encouraged or somehow coerced the private 

party, either overtly or covertly to take a particular action so that the choice is really that of the 

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state.’” Dubec v. Green Oak Twp., 482 F. App’x 128, 132 (6th Cir. 2012) (quoting Am. Postal 

Workers Union, Local 96 v. City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004)). “Under the 

nexus test, the action of a private party constitutes state action when there is a sufficiently close 

nexus between the state and the challenged action of the regulated entity so that the action of the 

latter may be fairly treated as that of the state itself.” Lansing v. City of Memphis, 202 F.3d 821, 

830 (6th Cir. 2000) (quoting Wolotsky, 960 F.2d at 1335). 

Plaintiff has failed to state a claim for relief against the defendants. The defendants are 

private actors, and plaintiff has not alleged facts that show that their actions are fairly attributable 

to the state. The public function test is not satisfied because “[a] merchant’s detention of persons 

suspected of stealing store property simply is not an action exclusively associated with the state 

[because] . . . [a] storekeeper’s central motivation in detaining a person whom he believes to be 

in the act of stealing his property is self-protection, not altruism.’” Chapman v. Higbee Co., 319 

F.3d 825, 834 (6th Cir. 2003) (quoting White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir. 

1979)). The state compulsion test is not satisfied because there are no facts to suggest that the 

state encouraged or coerced the alleged wrongful conduct. To the contrary, plaintiff alleges that 

when the police arrived at the store they “cleared” him after reviewing camera footage. For the 

same reason, there are no facts to suggest a close nexus between the state and the alleged 

wrongful conduct. A private actor does not become a state actor merely by placing a call to 

police concerning a suspected shoplifting. Boykin v. Van Buren Tp., 479 F.3d 444, 452 (6th Cir. 

2007). Plaintiff similarly has failed to allege any facts from which the Court can determine that 

the John Doe defendants are state actors.

Because plaintiff has failed to allege that his detention at Wal-Mart was “fairly 

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attributable” to the state, plaintiff has failed to state a cognizable § 1983 claim. See Hopson v. 

Wal-Mart, No. 5:05-cv-237, 2006 WL 939004, at *2-3 (W.D. Ky. Apr. 10, 2006) (dismissing at 

screening stage plaintiff’s § 1983 claims arising out of the plaintiff’s alleged wrongful detention 

for suspected shoplifting). 

D. Plaintiff’s State Law Claims Should Be Remanded to the State Court.

Plaintiff asserts claims against the defendants for “wrongful or illegal detainment,” 

“negligence,” “slander,” and “defamation of character.” (Doc. 2, at PageID 25). Generally, “[a] 

federal court that has dismissed a plaintiff’s federal-law claims should ordinarily not reach the 

plaintiff’s state-law claims.” Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 

2006). Indeed, the Sixth Circuit “applies a strong presumption against the exercise of 

supplemental jurisdiction once federal claims have been dismissed—retaining residual 

jurisdiction ‘only in cases where the interest of judicial economy and the avoidance of 

multiplicity of litigation outweigh our concern over needlessly deciding state law issues.’” 

Packard v. Farmers Ins. Co of Columbus, 423 F. App’x 580, 585 (6th Cir. 2011) (quoting Moon, 

465 F.3d at 728). 

Given this Court’s recommendation that plaintiff’s sole federal law claim be dismissed,

and given the early stages of this lawsuit, the Court should decline to exercise supplemental 

jurisdiction over plaintiff’s state law claims pursuant to 28 U.S.C. § 1367(c). See also Duff v. 

Yount, 51 F. App’x 520, 521-22 (6th Cir. 2002) (affirming district court’s decision declining 

jurisdiction over plaintiff’s supplemental state law claims and remanding those claims to state 

court once it found no basis upon which to exercise federal jurisdiction). Therefore, plaintiff’s 

state law claims against the defendants should be remanded to the Hamilton County Court of 

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Common Pleas.

Accordingly, in sum, plaintiff’s federal claims against all defendants should be 

DISMISSED with prejudice pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii). Plaintiff’s state law 

claims against all defendants should be REMANDED to the Hamilton County Court of 

Common Pleas for further proceedings pursuant to 28 U.S.C. §§ 1367(c). In light of this

recommendation, it is further RECOMMENDED that the parties’ various motions (Docs. 3, 5,

& 10-15) be DENIED without prejudice to the parties reasserting them as appropriate upon 

remand in state court. 

IT IS THEREFORE RECOMMENDED THAT:

1. The petition for removal of a state court action (Doc. 1) to this federal court be GRANTED.

2. Plaintiff’s sole federal claim against the defendants be DISMISSED with prejudice pursuant 

to 28 U.S.C. § 1915 (e)(2)(B)(ii).

3. Plaintiff’s state law claims against the defendants be REMANDED to the Hamilton County 

Court of Common Pleas for further proceedings pursuant to 28 U.S.C. § 1367(c).

4. The parties’ various motions (Docs. 3, 5, & 10-15) be DENIED without prejudice to the 

parties reasserting them as appropriate upon remand in state court. 

s/ Stephanie K. Bowman

Stephanie K. Bowman 

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES W.D. WILLIAMS, IV, Case No. 1:18-cv-518

Plaintiff,

Barrett, J.

vs Bowman, M.J.

WALMART’S, PRESIDENT, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after 

being served with a copy thereof. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) of the 

R&R objected to, and shall be accompanied by a memorandum of law in support of the 

objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after 

being served with a copy of those objections. 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).

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