UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RICHARD A. DAVIDSON, Case No. 1:18-cv-344

Plaintiff,

Barrett, J.

vs. Bowman, M.J. 

GISELE KIDWELL, et al., REPORT AND 

Defendants. RECOMMENDATION

Plaintiff, a prisoner at the Warren Correctional Institution, brings this pro se prisoner 

civil rights action against defendants Gisele Kidwell, Snapsext DBA, Uber Horny DBA, and 

Fling DBA. 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 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. See Prison Litigation 

Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(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. Id.; see also 28 

U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). 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 

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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) 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, 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 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 

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“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).

Plaintiff’s pro se complaint alleges that plaintiff was convicted of unlawful sexual 

conduct with a minor prior to filing the instant action. (Doc. 1-2, Complaint at PageID 17). 

Plaintiff alleges that the defendant website companies—Snapsext DBA, Uber Horney DBA, and 

Fling DBA—advertised the minor victim as being 19 years old and permitted her, as a minor, to 

post pornographic photos of herself for more than two months. Plaintiff claims the profile was 

then advertised on the web portals of the website defendants. According to plaintiff, “[t]hese 

websites/companies are misleading its members by allowing under age teens to access and post 

profiles and child pornography portraying to be of legal age and therefore caused me to view 

child pornography on my computer and cell phone.” (Id.). Plaintiff further alleges that the 

defendant websites misled him into visiting the minor victim for the express purpose of having a 

sexual encounter. (Id. at PageID 17–18). 

Plaintiff seeks to hold defendant Kidwell—the minor victim’s grandmother—liable based 

on his allegation that she allowed the minor victim to have access to her credit card in order to 

pay the monthly membership for her profile and to bypass the age verification process. (Id. at 

PageID 18). According to plaintiff, Kidwell had opportunity to prevent her access to the adult 

webpages and should be held accountable for her actions. 

For relief, plaintiff seeks monetary damages. (Id. at PageID 19). 

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Plaintiff’s allegations are insufficient to state a claim with an arguable basis in law over 

which this federal Court has subject matter jurisdiction. 

First, to the extent plaintiff may be invoking the diversity jurisdiction of the Court under 

28 U.S.C. § 1332(a), the complaint reveals such jurisdiction is lacking. 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 v. North American Res. Corp., 809 F. Supp. 546, 551 (S.D. Ohio 1992). In this 

case, there is no complete diversity of citizenship because plaintiff and defendant Kidwell are 

Ohio citizens. (See Doc. 1-2, Complaint at PageID 13, 16). Therefore, this Court lacks subject 

matter jurisdiction on the basis of diversity of citizenship over any state law claims plaintiff may 

be alleging.

Second, the Court is without federal question jurisdiction over the complaint. 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). The undersigned is unable to discern from the facts alleged in the complaint any federal 

statutory or constitutional provision that applies to give rise to an actionable claim for relief 

against the named defendants.

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IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) and 1915A(b)(1).

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) 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. See McGore v. Wrigglesworth, 

114 F.3d 601 (6th Cir. 1997).

 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

RICHARD A. DAVIDSON, Case No. 1:18-cv-344

Plaintiff,

Barrett, J.

vs. Bowman, M.J. 

GISELE KIDWELL, et al.,

Defendants.

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).

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