UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

CHARLES CASTON,

Plaintiff, Case No. 1:21-cv-510 v. JUDGE DOUGLAS R. COLE Magistrate Judge Litkovitz UNIVERSITY OF HOUSTON, et al.,

Defendants. ORDER This cause is before the Court on the Magistrate Judge’s August 10, 2021, Report and Recommendation (“R&R,” Doc. 4) advising the Court to dismiss Plaintiff Charles Caston’s Complaint (Doc. 3) with prejudice. For the reasons discussed below, the Court ADOPTS the R&R’s (Doc. 4) recommendation to dismiss, but DISMISSES Caston’s Complaint (Doc. 3) WITHOUT PREJUDICE. On August 9, 2021, Caston moved pro se for leave to file his Complaint in forma pauperis. (Doc. 1). The Magistrate Judge granted the motion (Doc. 2), and Caston’s Complaint was filed the same day (Doc. 3). It is incoherent. (See id.). Naming over 50 defendants, Caston’s Complaint purports to proceed under the Fourth, Fifth, Sixth, and Eighth Amendments. (Id. at #16). Caston demands a host of outlandish remedies, including a “court appointed Manager for all businesses,” a restraining order to prevent domestic violence, the seizure of property “used for criminal activity,” a gag order, that Defendants “follow the six feet rule of social distances,” and that Defendants “follow the third party rule of communications.” (Id. at #16–17). But Caston includes no discernable factual allegations. After screening Caston’s Complaint under

(e), the Magistrate

Judge issued the R&R and advised the Court to dismiss Caston’s Complaint with prejudice. (Doc. 4). Even after construing Caston’s Complaint liberally, the R&R concluded the Court lacked subject-matter jurisdiction. First, diversity jurisdiction is unavailable because both Caston and the University of Houston (one of the named Defendants) are citizens of Texas. (Id. at #29). And second, as Caston did not allege facts to support an actionable constitutional claim, the Court is without federal question jurisdiction. (Id. at #29–30).

Beyond recommending the Court dismiss the Complaint, the R&R specifically advised Caston that failing to object within the 14 days specified in the R&R may cause forfeiture of rights on appeal, which includes the right to District Court review. (See

at #31); see also Thomas v. Arn,

(1985) (“There is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate’s report to which no objections are filed.”); Berkshire v.

Beauvais,

(6th Cir. 2019) (noting “fail[ure] to file an objection to the magistrate judge’s R&R ... is forfeiture”);

(b)(1)(C). Rather than objecting, Caston filed a notice of appeal to the Federal Circuit Court of Appeals. (Doc. 5). Of course, this was in error because the R&R was not a final judgment.1 So the

1 In addition, the Federal Circuit is almost certainly the wrong appellate court to hear Caston’s appeal. See

. However, without factual allegations, the Court cannot confirm that. time for filing objections has passed, and Caston has not objected to the R&R. Moreover, even if the Court were to treat his notice of appeal as an objection (after all, Caston is proceeding pro se), that does not fix the problem. The notice of appeal

is a one-page form document that does not identify any alleged errors in the R&R, making Caston’s “objection,” at best, an improper general objection. See Prince v. Scioto Cnty. Common Pleas Ct., Ct. Employee, No. 1:20-cv-652,

, at *1 (S.D. Ohio July 29, 2022) (noting that objections must identify specific errors). Either way then, the R&R is unobjected. Nonetheless, the advisory committee notes to Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself that there is no clear error on

the face of the record in order to accept the recommendation.” See also Redmon v. Noel, No. 1:21-cv-445,

, at *1 (S.D. Ohio Oct. 13, 2021) (citing cases). Consistent with that admonition, the Court has reviewed the R&R and determined that it does not contain “clear error on [its] face.” Fed. R. Civ. P. 72(b) (advisory committee notes). It is Caston’s burden as plaintiff to show the Court has subject-matter

jurisdiction over his claims. See Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994); Farmer v. Fisher,

(6th Cir. 2010). He has not done so. To fall within the diversity jurisdiction, all plaintiffs must be diverse from all defendants. V & M Star, LP v. Centimark Corp.,

(6th Cir. 2010). Here, as noted, the plaintiff and at least one defendant are citizens of Texas. Thus, the R&R correctly found complete diversity lacking. As for federal question jurisdiction, Caston invokes various constitutional

provisions as the basis for his claim. (Doc. 3, #16). And generally, such claims fall under

. The problem, though, is Caston sets forth no facts to show he has a colorable claim under those provisions. As the Supreme Court noted in Arbaugh v. Y&H Corp., “[a] claim invoking federal-question jurisdiction ... may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e., if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.”

, 513 n.10 (2006) (internal citations and quotation marks

omitted). Just so here. In short, the R&R correctly determined that dismissal is warranted. But because the dismissal is for lack of subject-matter jurisdiction, rather than on the merits, the Court dismisses the action without prejudice. Thus, the Court ADOPTS the R&R (Doc. 4) as far as it recommends dismissal, but the Court DISMISSES Caston’s Complaint (Doc. 3) WITHOUT PREJUDICE.

The Court further DIRECTS the Clerk to ENTER JUDGMENT and TERMINATE the matter on the docket. Finally, the Court CERTIFIES, under

(a), that for the above reasons, Caston could not appeal this Order in good faith and so DENIES him leave to appeal in forma pauperis. SO ORDERED. January 20, 2023 DATE DOUGLAS R. COLE UNITED STATES DISTRICT JUDGE