UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

MARK LEE PADGETT, JR. Case No. 1:21-cv-11

Plaintiff, McFarland, J. vs. Bowman, M.J.

REKOW & STULL ORTHODONTISTS,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Mark Lee Padgett, a resident of Maysville, Kentucky brings this action against Rekow & Stull Orthodontists, a business located in Fort Thomas, Kentucky. 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 plaintiff’s 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.

(e)(2)(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). 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). 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-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). Upon careful review, the undersigned finds that Plaintiff’s complaint fails to state a claim upon which relief may be granted in this federal court. Plaintiff alleges that he was a patient at Defendant’s clinic and brings this action for negligence relating to orthodontic work and Defendant’s refusal to remove his braces. Plaintiff seeks to recover “about

$2,200,00.00 in damages as relief.” (Doc. 1, PageID 9). Plaintiff asserts subject matter jurisdiction based upon diversity of citizenship. Federal district courts have original jurisdiction in diversity of citizenship cases where the civil action is between citizens of different states and the amount in controversy in the action is greater than $75,000.

. PNC Equip. Fin., LLC v. Mariani, No. 1:14CV663,

, at *2 (S.D. Ohio July 21, 2015). Here, Plaintiff asserts that he and Defendant are both residents of Kentucky; therefore, the requirements of diversity jurisdiction are not satisfied. In addition, Plaintiff fails to allege any claim under federal law. For these reasons, it is therefore RECOMMENDED this action be DISMISSED with PREJUDICE for failure to state a claim for relief. It is further RECOMMENDED that the Court certify pursuant to

(a) 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.

s/ Stephanie K. Bowman Stephanie K. Bowman United States Magistrate Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

MARK LEE PADGETT, JR. Case No. 1:21-cv-11

Plaintiff, McFarland, J. vs. Bowman, M.J.

REKOW & STULL ORTHODONTISTS,

Defendant.

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).