United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley, Judge.
REPORT AND RECOMMENDATION AND ORDER
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.
Jon Olivito, an Ohio resident who is proceeding without the
assistance of counsel, brings this action against Peter S.
Olivito. This matter is before the undersigned for
consideration of Plaintiff's Motion for Leave to Proceed
In Forma Pauperis (Doc. 7) and the initial screen of
Plaintiff's Complaint under 28 U.S.C. § 1915(e)(2).
reasons that follow, Plaintiff's request to proceed
in forma pauperis is GRANTED.
Furthermore, having performed an initial screen and for the
reasons that follow, it is RECOMMENDED that
the Court DISMISS Plaintiff's claims as
MOTION FOR LEAVE TO PROCEED IN FORMA
Adkins v. E.I. DuPont de Nemours & Co., Inc.,
335 U.S. 331 (1948), the Supreme Court set forth the legal
standard applicable to a motion to proceed in forma
pauperis. An affidavit of poverty is sufficient if it
reflects that the plaintiff cannot pay the Court's filing
fee without depriving himself and his dependents of the
“necessities of life.” Id. at 339
(internal quotation marks omitted). Although the plaintiff
need not be totally destitute in order to proceed in
forma pauperis, paying the filing fee must be more than
a mere hardship. See Foster v. Cuyahoga Dep't of
Health & Human Servs., 21 F. App'x. 239, 240
(6th Cir. 2001) (noting that “the question is whether
the court costs can be paid without undue hardship”).
Plaintiff swears that he is unemployed, and although he
reports receiving $17, 000.00 at one point from
“mineral rights, ” he states that he now has no
cash on hand or money in a savings, checking, or other
account. (Doc. 7 at 1-2). Further, Plaintiff states that he
has “no heat, no water, no phone, no transportation
(car).” Consequently, the Court is satisfied that
Plaintiff cannot pay the Court's filing fee without
depriving himself of the “necessities of life.”
Thus, Plaintiff's request to proceed in forma
pauperis (Doc. 7) is GRANTED. All
judicial officers who render services in this action shall do
so as if the costs had been prepaid. 28 U.S.C . §
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), (citing 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. Id. (citing
Neitzke, 490 U.S. at 327-28).
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). However, 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 F. App'x 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).
Complaint contains various allegations of “fraud,
forgery, larceny, and murder.” (See generally
Doc. 1). Although portions are slightly illegible, the
following are some exemplary allegations from the Complaint:
A lawyer-Peter S. Olivito my own uncle is an evil
sneak thief who destroyed a lot of lives. He has
associates in Cleveland who help him steal estates in
Jefferson County Ohio including mine, the largest he
has been stealing piecemeal over a lifetime land mineral
rights, trust fund, insurance policies worth millions that he