Byrd v. Underwood

CAROLYN BYRD, Plaintiff, v. ARICA LYNN UNDERWOOD, Defendant.

Case No. 1:13-cv-579

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: September 6, 2013

Beckwith, J.

Bowman, M.J.

REPORT AND

RECOMMENDATION

Plaintiff, who resides in Cincinnati, Ohio, commenced this action by filing a motion for leave to proceed in forma pauperis in connection with a pro se civil complaint. By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is now before the Court for a sua sponte review of the complaint to determine whether the pleading, 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 28 U.S.C. § 1915(e)(2)(B).

Congress has authorized federal courts to dismiss an in forma pauperis complaint if satisfied that the action is frivolous or malicious. Denton v. Hernandez, 504 U.S. 25, 31 (1992); see also 28 U.S.C. § 1915(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, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (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, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or riseto 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 has also authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii). Although a plaintiff's pro se complaint must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers," the complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted)). 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 Twombly, 550 U.S. at 570); 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 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1)).

"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 well-pleaded 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 "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting 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.

Plaintiff brings this action against Arica Lynn Underwood, an attorney at the Public Defender's Office in Cincinnati, Ohio. (Doc. 1, Complaint, p. 2). Plaintiff alleges that she hired Underwood on June 29, 2007, but that Underwood breached a contract for legal services "by not communicating court dates" and missing deadlines. (Id., p. 3). Plaintiff also alleges that part of the court case was dismissed due to Underwood's negligence and that Underwood failed to communicate that the case had been partially dismissed. (Id.). In addition, plaintiff claims that Underwood committed "fraud" by submitting an affidavit in plaintiff's name, falsely claiming that plaintiff was indigent so that Underwood could "utilize money paid to her for her own personal use." (Id.). Plaintiff further asserts that Underwood "failed to maintain separate account for business purposes" and, with the assistance of Karen Osmond of the Ohio Supreme Court, tried to "bribe [plaintiff] to drop complaint during ongoing investigation." (Id.). Plaintiff claims that Underwood is liable for "fraud, identity theft, obstruction of justice, breach of contract, conspiracy, [and] theft." (Id., p. 4). As relief, plaintiff seeks a total of $3,000,000 in compensatory and punitive damages. (Id.).

The complaint does not set forth many facts underlying plaintiff's cause of action against Underwood. However, this Court "may take judicial notice of proceedings in other courts of record." Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (quoting Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir. 1969); Saint Torrance v. Firstar, 529 F.Supp.2d 836, 838 n.1 (S.D. Ohio 2007). It appears from the on-line docket records maintained by the Clerk of the Ohio Supreme Court that a disciplinary case was filed against Underwood on October 9, 2012 in Case No. 12-1709 by Karen Osmond, as the counsel of record for the"Disciplinary Counsel (Relator)."¹ The parties' "Agreement for Consent to Discipline" pleading, which was filed with the Ohio Supreme Court to open the case, contains stipulated facts revealing that the disciplinary matter arose from Underwood's representation of plaintiff in an employment discrimination matter against Time Warner Cable. Underwood filed the action on plaintiff's behalf on December 7, 2007 in the Hamilton County Court of Common Pleas. The case was assigned to the docket of Judge Ethna Cooper and was assigned the case number A-0711195. Plaintiff, who was responsible for all expenses incurred in the prosecution of the case under the "fee agreement" with Underwood, provided "a total of at least $1,100 to cover the costs of litigation" between June 2007 and June 2008. However, Underwood apparently did not deposit any of plaintiff's funds into a client trust account.

The "attorney/client relationship" deteriorated, and on June 16 and August 8, 2008, Underwood filed motions to withdraw as plaintiff's counsel. After a hearing held on August 20, 2008, the court allowed Underwood to withdraw as counsel and also ordered Underwood to refund money owed to plaintiff, which at that time amounted to $800, within thirty days. Underwood did not refund the money within the requisite 30-day period and still owed plaintiff $700 by the time plaintiff filed on September 3, 2009 both a motion for contempt against Underwood in the employment discrimination case and a legal malpractice action against Underwood in the Hamilton County Court of Common Pleas. The legal malpractice case was assigned to the docket of Judge Robert Ruehlman and was assigned the case number A-0908466. On October 8, 2009, Judge Cooper found Underwood in contempt for failure to comply with the August 20, 2008 order in the employment discrimination case and ordered Underwood to pay plaintiff $750 plus interest from September 20, 2008. In the first hearing held on January 13,2010 in the legal malpractice case, Judge Ruehlman stated that he would not issue any ruling until Underwood "cured herself of the contempt" in the employment discrimination case and paid plaintiff "$750 plus interest." It appears that Underwood paid $750 to plaintiff on March 3, 2010, but still owed plaintiff interest. At a hearing held on August 24, 2010 in the legal malpractice case, Judge Ruehlman calculated the amount of interest owed to plaintiff and ordered Underwood to pay plaintiff $113 in interest plus $225 in court costs for a total additional payment of $338. On November 1, 2010, over one year after she was first ordered to pay interest to plaintiff in the employment discrimination case, Underwood paid plaintiff $338 for interest and court costs, and Judge Ruehlman dismissed plaintiff's legal malpractice action against Underwood.

Thereafter, in August 2011, plaintiff filed a grievance against Underwood with disciplinary counsel. In response to inquiries by disciplinary counsel regarding plaintiff's grievance, Underwood sent plaintiff a money order for an additional $205 in interest. In the "Agreement for Consent to Discipline" filed on October 9, 2012 with the Ohio Supreme Court in Case No. 12-1709, Underwood stipulated that she had violated disciplinary rules requiring lawyers to keep trust account records and to deposit fees and expenses that have been paid in advance into a client trust account. The relator and Underwood also agreed that the recommended sanction should be "a one-year, fully stayed, suspension." The Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio concurred in the agreed sanction. On July 18, 2013, the Ohio Supreme Court issued an order suspending Underwood "from the practice of law for a period of one year with the entire suspension stayed on the conditions that [she] (1) engage in no further misconduct, and (2) complete, in addition to general requirements . . ., at least six hours of continuing legal education in law-office management within six months of this order."

Plaintiff initiated the instant action a month after the Ohio Supreme Court issued its disciplinary ...