Opinion
Case No. 3:13-cv-385
11/21/2013
HOLLANT M. ADRIEN, Ph.D, Plaintiff, v. WITTENBERG UNIVERSITY, et al., Defendants.
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
ORDER
Plaintiff Hollant Adrien brought this case pro se to recover damages from eight Defendants related to criminal charges brought against him in the Clark County Common Pleas Court. The case is before the Court for review prior to issuance of process. Plaintiff was granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. 28 U.S.C. § 1915(e)(2), as amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective April 26, 1996)(the "PLRA"), reads as follows:
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
(A) the allegation of poverty is untrue; or
(B) the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous under this statute if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989). In deciding whether a complaint is "frivolous," that is, the Court does not consider whether a plaintiff has good intentions or sincerely believes that he or she has suffered a legal wrong. Rather the test is an objective one: does the complaint have an arguable basis in law or fact?
It is appropriate for a court to consider this question sua sponte prior to issuance of process "so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is permitted under § 1915(e) only "if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985).
The test for dismissal under of a complaint for failure to state a claim upon which relief can be granted has recently been re-stated by the Supreme Court:
Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
S.Ct. 1827, 104 L.Ed.2d 338 (1989)(" Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").
[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289 F.Supp.2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation) ("[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase").Twombly, 550 U.S. at 558; see also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). The test is whether, reading the complaint in the light most favorable to the plaintiff, it is plausible that a defendant's acts violated the plaintiff's clearly established rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); In re NM Holdings Co., 622 F.3d 613, 618 (6th Cir. 2010); Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir. 2010).Twombly and Iqbal apply to review of complaints for failure to state a claim under §§ 1915A(b)(1) and 1915(e)(2)(B)(II). Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010).
Plaintiff asserts this Court has subject matter jurisdiction of his claims under 28 U.S.C. § 1343 for violation of his civil rights and under 28 U.S.C. § 1331 for a claim arising under federal law (Complaint, Doc. No. 1, PageID 6).
The Court's electronic filing system (CM/ECF) automatically affixes a distinctive page number (shown in the upper right-hand corner as PageID) to each page of each filed document. All citations to the filed record in this case must refer to the PageID number.
Having reviewed the Complaint and some of the extensive exhibits attached, the Magistrate Judge cannot say it appears beyond doubt that the Plaintiff cannot prove at least some of the claims he makes against the Defendants. Accordingly, if presented with process in proper form, the Clerk shall issue process directed to each of the Defendants. Likewise, if presented with properly prepared United States Marshal forms for service, the Clerk shall direct those forms to the Marshal who shall serve process herein. Plaintiff is advised that he must furnish a complete copy of the Complaint for service on each of the Defendants.
Michael R. Merz
United States Magistrate Judge