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Olivito v. Olivito

United States District Court, S.D. Ohio, Eastern Division

March 29, 2018

JON OLIVITO, Plaintiff,
v.
PETER S. OLIVITO, Defendant.

          Algenon L. Marbley, Judge.

          REPORT AND RECOMMENDATION AND ORDER

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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).

         For the 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 frivolous.

         I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         In 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”).

         Here, 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 . § 1915(a).

         II. INITIAL SCREEN

         A. Relevant 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), (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).

         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). 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).

         B. Discussion

         Plaintiff's 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 ...

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