United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley, Judge.
ORDER AND REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.
Antuan Burress-El, an Ohio resident proceeding without the
assistance of counsel, has submitted a request to file a
civil action in forma pauperis. (ECF No. 1.) The
Court GRANTS Plaintiff's request to
proceed in forma pauperis. All judicial officers who
render services in this action shall do so as if the costs
had been prepaid. 28 U.S.C. § 1915(a). This matter is
also before the Court for the initial screen of
Plaintiff's Amended Complaint as required by 28 U.S.C.
§ 1915(e)(2) to identify cognizable claims and to
recommend dismissal of Plaintiff's Amended Complaint, or
any portion of it, which 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. 28 U.S.C. § 1915(e)(2). Having performed the
initial screen, for the reasons that follow, it is
RECOMMENDED that the Court
DISMISS this action pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure
12(h)(3) WITHOUT PREJUDICE to filing any
state-law claims in state court.
enacted 28 U.S.C. § 1915, the federal in forma
pauperis statute, seeking to “lower judicial
access barriers to the indigent.” Denton v.
Hernandez, 504 U.S. 25, 31 (1992). In doing so, however,
“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.'” Id. at 31 (quoting Neitzke
v. Williams, 490 U.S. 319, 324 (1989)). To address this
concern, Congress included subsection (e), which provides
in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that--
* * *
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii);
Denton, 504 U.S. at 31. Thus, § 1915(e)
requires sua sponte dismissal of an action upon the
Court's determination that the action is frivolous or
malicious, or upon determination that the action fails to
state a claim upon which relief may be granted.
properly state a claim upon which relief may be granted, a
plaintiff must satisfy the basic federal pleading
requirements set forth in Federal Rule of Civil Procedure
8(a). See also Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil
Procedure 12(b)(6) standards to review under 28 U.S.C.
§§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Thus, Rule 8(a)
“imposes legal and factual demands on the
authors of complaints.” 16630 Southfield Ltd.,
P'Ship v. Flagstar Bank, F.S.B., 727
F.3d 502, 503 (6th Cir. 2013).
this pleading standard does not require
“‘detailed factual allegations, ' . . . [a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action, '” is insufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
complaint will not “suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). Instead, to survive a
motion to dismiss for failure to state a claim under Rule
12(b)(6), “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is
plausible on its face.'” Id. (quoting
Twombly, 550 U.S. at 570). Facial plausibility is
established “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “The plausibility of an inference depends
on a host of considerations, including common sense and the
strength of competing explanations for the defendant's
conduct.” Flagstar Bank , 727 F.3d at 504
(citations omitted). Further, the Court holds pro se
complaints “‘to less stringent standards than
formal pleadings drafted by lawyers.'” Garrett
v. Belmont Cnty. Sheriff's Dep't., 374 Fed.Appx.
612, 614 (6th Cir. 2010) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972)). This lenient treatment, however,
has limits; “‘courts should not have to guess at
the nature of the claim asserted.'” Frengler v.
Gen. Motors, 482 Fed.Appx. 975, 976-77 (6th Cir. 2012)
(quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
when the face of the complaint provides no basis for federal
jurisdiction, the Court may dismiss an action as frivolous
and for lack of subject matter jurisdiction under both 28
U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 12(h)(3).
Williams v. Cincy Urban Apts., No. 1:10-cv-153, 2010
WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) ...