United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.
a resident of Cincinnati, brings this action against Danielle
Jacques and Arthur Coleman for identity theft. 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 before the Court for a sua
sponte review of plaintiff's complaint to determine
whether the complaint, 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. 28
enacting the original in forma pauperis statute,
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.”
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; 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 rise to
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).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint
filed by a pro se plaintiff must be “liberally
construed” and “held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the
same token, however, 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
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); 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 §§ 1915A(b)(1) and
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
accusation.” Iqbal, 556 U.S. at 678 (citing
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. The complaint must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”
Erickson, 551 U.S. at 93 (citations omitted).
Plaintiff brings a claim for identity theft pursuant to the
Fair Credit Reporting Act, 15 U.S.C § 1681. Plaintiff
asserts that on April 23, 2019, Defendant Jacques, who is a
police officer of the Cincinnati Police Department shared his
address with Defendant Coleman. Plaintiff further alleges
that Defendant Jacques “told Mr. Coleman that he had to
file an eviction against [Plaintiff].” (Doc. 1 at p.
3). Plaintiff claims Defendant Jacques shared this
information without his expressed written consent. Plaintiff
seeks compensatory damages in the amount of $200, 000.00.
Upon careful review, the undersigned finds that
Plaintiff's complaint fails to state a claim upon which
relief may be granted in this federal court. Notably, section
1681 discusses the “Congressional Findings and
Statement of Purpose” of the Fair Credit Reporting Act
does not provide a private cause of action. As such,
Plaintiff's complaint fails to state a claim for relief
in this regard. Nor are there any allegations that support a
claim for identity theft. Plaintiff alleges only that
Defendant Jacques told Defendant Coleman where Plaintiff
lived. As such, Plaintiff has failed to state a claim for
to the extent Plaintiff seeks to challenge the eviction
action, this court lacks jurisdiction over such a claim.
Notably, under the Rooker-Feldman doctrine,
“lower federal courts lack subject matter jurisdiction
to review the decisions of state courts.””
Givens v. Homecomings Fin., 278 Fed.Appx. 607,
608-09 (6th Cir. 2008) (citing D.C. Ct. of App. v. Feldman,
460 U.S. 462, 476 (1983). Accordingly, the complaint fails to
state a claim upon which relief may be granted and should be
dismissed under 28 U.S.C. §1915(e)(2)(B).
for these reasons, it is therefore
RECOMMENDED this action be
DISMISSED with PREJUDICE
for failure to state a claim for relief. It is further
RECOMMENDED that the Court certify pursuant
to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation
would not be taken in good faith and therefore deny Plaintiff
leave to appeal in forma pauperis.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to this Report & Recommendation
(“R&R”) within FOURTEEN (14)
DAYS after being served with a copy thereof. That
period may be extended further by the Court on timely motion
by either side for an extension of time. All objections shall
specify the portion(s) of the R&R objected to, and shall
be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent's
objections within FOURTEEN DAYS after being
served with a copy of those objections. Failure to make
objections in ...