UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

NATHANIEL YATES, III, Case No. 1:20-cv-335 Plaintiff, McFarland, J. vs. Bowman, M.J.

WILLIAM C. WALTER, et al., REPORT AND Defendants. RECOMMENDATION

Plaintiff, a prisoner at the Central Mississippi Correctional Facility, has filed a complaint and amended complaint against defendants William C. Walter and the National Legal Professional Associates. (Doc. 1, PageID 1–2; Doc. 10). By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to

. 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,

(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,

(1992) (quoting Neitzke v. Williams,

(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

(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,

(1989); see also Lawler v. Marshall,

(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,

. An action has no arguable factual basis when the allegations are delusional or rise

to the level of the irrational or “wholly incredible.” Denton,

; Lawler,

. The Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin,

(6th Cir. 2010) (quoting Neitzke,

). Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief may be granted.

(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,

(2007) (per curiam) (quoting Estelle v. Gamble,

(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,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)); see also Hill,

(“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,

(citing Twombly,

). The Court must accept all well-

2 pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a factual allegation.” Twombly,

(quoting Papasan v. Allain,

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal,

(citing Twombly,

). A pleading that offers “labels and conclusions” or

“a formulaic recitation of the elements of a cause of action will not do.” Twombly,

. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”

. The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson,

(citations omitted). Plaintiff, who is proceeding pro se, brings this civil rights complaint against defendants William C. Walter--an attorney located in Hattiesburg, Mississippi—and the National Legal Professional Associates (NLPS), located in Cincinnati, Ohio. (Doc. 1, PageID 1–2; Doc. 10 at PageID 34). Plaintiff alleges that he paid defendants for legal services related to a post- conviction petition. However, according to plaintiff, defendants did not provide the services or

provide a refund. (Id. at PageID 2–3). Based on these factual allegations, plaintiff brings claims for fraud, malpractice, negligence, and negligence in hiring and seeks monetary damages. (Id. at PageID 4–5). 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

(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, 3

(1996) (citing State Farm Fire & Cas. Co. v. Tashire,

(1967)); see also Napletana v. Hillsdale College,

(6th Cir. 1967); Winningham v. North American Res. Corp.,

(S.D. Ohio 1992). In this case, there is no complete diversity of citizenship because plaintiff and defendant Walter are Mississippi citizens. (See Doc. 1 at PageID 1–2). 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.”

. In order to invoke the Court’s federal question jurisdiction pursuant to

, plaintiff must allege facts showing the cause of action involves an issue of federal law. See Metro. Life Ins. Co. v. Taylor,

(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.

4 IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to

(e)(2)(B) and 1915A(b)(1). 2. Plaintiff’s motion to appoint counsel (Doc. 7) be DENIED. 3. The Court certify pursuant to

(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,

(6th Cir. 1997).

s/Stephanie K. Bowman Stephanie K. Bowman United States Magistrate Judge

5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

NATHANIEL YATES, III, Case No. 1:20-cv-335 Plaintiff, McFarland, J. vs. Bowman, M.J.

WILLIAM C. WALTER, 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,

(1985); United States v. Walters,

(6th Cir. 1981).

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