Opinion
Civil Action 2:21-cv-1440
05-05-2021
KEVEANTE SMOOT, Plaintiff, v. JPAY, INC., Defendant.
James L. Graham, Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
Plaintiff Keveante Smoot is an inmate at United States Penitentiary Big Sandy who is proceeding pro se against Defendant JPay Inc., (“JPay”). (Doc. 1). This matter is before the Court to conduct the initial screen of Plaintiff's Complaint under 28 U.S.C. §§ 1915(e) and 1915(A). For the reasons set forth below, the Undersigned RECOMMENDS DISMISSAL of the Complaint (Doc. 1) as time barred and for failure to state a claim upon which relief can be granted.
I. BACKGROUND
In the instant case, Plaintiff seeks to recover damages for an alleged constitutional violation by JPay, a Florida company providing services to Plaintiff and other inmates in U.S.P Big Sandy. (See generally Doc. 1). Although not entirely clear, Plaintiff claims that JPay violated his rights under 42 U.S.C. § 1983 by turning over several of his email communications to an unnamed, nonparty, law enforcement official. (Id. at 1). Specifically, he alleges that Defendant provided these communications “without a warrant or subpoena” despite representing that it “do[es] not give out emails . . . without a warrant or subpoena . . . ” (Id. at 2). At base, Plaintiff argues that by disclosing these emails, “[Defendant] broke and violated [his] 4th and 5th Amendment [rights] . . . ” (Id.). Plaintiff seeks monetary relief of $75,000,000.00 for “lost wages [and] emotional, physical and mental injuries ....” (Id.).
After Plaintiff filed his Complaint on March 31, 2021, the Clerk issued a Notice of Deficiency directing him to either pay the full filing fee or submit a motion for leave to proceed in forma pauperis. (Doc. 2). On April 8, 2021, Plaintiff filed a Motion for Leave to Proceed in forma pauperis. (Doc. 4). Upon review, the Court determined that Plaintiff's Motion was deficient, and ordered him to file an amended motion to proceed in forma pauperis. (Doc. 5). Shortly thereafter, Plaintiff amended his Motion, curing the deficiencies identified by the Court. (See Doc. 6). The Court then granted Plaintiff's amended Motion to Proceed in forma pauperis. (Doc. 7).
Given the location of his incarceration, Inez, Kentucky, coupled with the allegations in the Complaint, the Court ordered Plaintiff to show cause why jurisdiction is proper in this District, and why his action should not be transferred to the United States District Court for the Eastern District of Kentucky. (Id. at 2). In his response to the Show Cause Order, Plaintiff represents that the allegations in his Complaint arise solely from his previous criminal case in Columbus, Ohio. (Doc. 8). Furthermore, he represents that he is from Columbus, Ohio and will shortly be released to a halfway house there. (Id.). Importantly, Plaintiff states that the actions leading to this case occurred in November 2018. (Id.). Based on these representations, the Court is satisfied that jurisdiction is proper in this District. Accordingly, Plaintiff's Complaint is now ripe for screening.
II. STANDARD
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the complaint, or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). “A claim is frivolous if it lacks ‘an arguable basis either in law or in fact.'” Flores v. U.S. Atty. Gen., No. 2:14-CV-84, 2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). This occurs when “indisputably meritless” legal theories underlie the complaint, or when a complaint relies on “fantastic or delusional” allegations. Flores, 2014 WL 358460, at *2 (citing Neitzke, 490 U.S. at 327-28).
In reviewing a complaint, the Court must construe it in Plaintiff's favor, accept all well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Yet, a court is not required to accept factual allegations set forth in a complaint as true when such factual allegations are “clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 Fed.Appx. 427, 429-30 (6th Cir. 2009). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In sum, although pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. DISCUSSION
Plaintiff's case should be dismissed because it is untimely. It also appears that this lawsuit is not proper against JPay, the only named defendant.
A. Statute of Limitations
Plaintiff's case is untimely. Plaintiff purports to bring his claims under 42 U.S.C. § 1983. (See generally Doc. 1). The statute of limitations applicable to claims arising in Ohio under 42 U.S.C. § 1983 is the two-year statute of limitations found in Ohio Revised Code § 2305.10. Boddie v. Barstow, No. 2:14-cv-0106, 2014 U.S. Dist. LEXIS 61384, 2014 WL 2611321, at *2 (S.D. Ohio May 2, 2014), report and recommendation adopted, No. 2:14-CV-106, 2014 U.S. Dist. LEXIS 79419, 2014 WL 2608123 (S.D. Ohio June 11, 2014) (citing Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989)). “Although the statute of limitations is normally an affirmative defense that must be raised by defendants in an answer, if the limitations bar appears on the face of the complaint, the Court may apply it during the initial screening process.” Boddie, 2014 U.S. Dist. LEXIS 61384, 2014 WL 2611321, at *3 (citing Watson v. Wayne County, 90 F. App'x. 814, at *3 (6th Cir. 2004) (“If a statute of limitations defense clearly appears on the face of a pleading, the district court can raise the issue sua sponte”)). This Court has often applied that rule in cases screened under § 1915A. Id. (citing Smith v. Warren County Sheriff's Dept., No. 1:10-cv-113, 2010 U.S. Dist. LEXIS 25528, 2010 WL 761894 (S.D. Ohio March 2, 2010)). Accordingly, the Court must look to the allegations in the Complaint to determine whether the action has been filed within the applicable two-year period.
Here, it is clear that Plaintiff believes his constitutional rights were violated in November 2018-and at the latest, December 2018. (Doc. 1 at 1, 2). Indeed, he says that his emails were used to support a criminal complaint dated December 20, 2018. (Id. at 1). Yet, he did not file this case until March 31, 2021. (Id.). Further, it is clear that Plaintiff has been aware that the emails were used to support the criminal complaint as early as December 16, 2019. (Id.). Accordingly, Plaintiff missed his window to bring this suit, and the action should be dismissed as untimely.
B. Constitutional Claims Against JPay
Even if Plaintiff's suit was timely, he would still face another hurdle. Specifically, he has not stated a claim upon which relief can be granted. As noted, Plaintiff has brought his claim under 42 U.S.C. § 1983. In pertinent part, the statute states:
Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law . . .
Thus, to bring a successful § 1983 claim for an alleged constitutional violation, the defendant must have acted “under the color of law.” See id. Stated differently, “the under-the-color-of state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). Here, Plaintiff claims that Defendant JPay violated his Fourth Amendment rights. But that constitutional provision protects against unreasonable searches and seizures by the government. JPay is a private company, and would have had no authority to require the detective on Plaintiff's case to follow the Constitution as Plaintiff appears to have wanted. (See Doc. 1 at 1 (asserting that JPay failed to make the detective follow the Constitution)).
Moreover, based upon Plaintiff's allegations, it appears that his primary concern with JPay is that it did not comply with its contractual obligations. (Id.). Specifically, Plaintiff claims that JPay “ broke [their] contract.” (Id. at 1). The remedy for a breach of contract is more appropriately determined in state court-not under § 1983 in federal court. Relatedly, Plaintiff seeks $75,000,000 for his loss of liberty. (Id. at 2). Yet, the State, not JPay, has custody of Plaintiff. Finally, Plaintiff also mentions the Fifth Amendment (see id.) and potentially refers to the Eighth Amendment. (Id. at 2 (alleging he was “put through cruel and unusual punishment”)). These allegations are too vague and conclusory to evaluate and thus do not properly state a claim upon which relief can be granted.
C. CONCLUSION
For the foregoing reasons, the Undersigned RECOMMENDS DISMISSAL of the Complaint (Doc. 1) as time barred and for failure to state a claim upon which relief can be granted.
IT IS SO ORDERED.