Opinion
Case No. 3:09cv00216.
June 11, 2009
ORDER
Plaintiff Vanessa Hurley, a resident of the Troy, Ohio, brings this case pro se alleging, in part, that after her grandchildren were placed in foster care, they were moved four different times within one month. On one occasion, according to Plaintiff, "stitches were in my granddaughter['s] head, as a family we were not notified of the incident. I Vanessa Hurley have been the primary care giver for both of my grandchildren since birth until 2006." (Doc. #2 at 3). Plaintiff further alleges that she attempted to enroll her granddaughter in school without success because she "did not have the proper custody papers in order to do so." (Doc. #2 at 3). Plaintiff explains that her daughter, the children's mother, was taken to prison in 2002, and for five years, Defendant never checked on the children to learn who had custody. Plaintiff's grandchildren were re-united with their mother, who is apparently no longer in prison. But, according to Plaintiff, Defendant never provided any follow-up services and "neglected their needs." Id. at 4. In addition, Plaintiff had previously "told Children Services of abuse my daughter was committing against my grandchildren when my granddaughter was 3 months. They refused to get involved." Id. at 3.
The Court previously granted Plaintiff's Application to Proceed in forma pauperis (IFP) under 28 U.S.C. § 1915. This case is presently before the Court for a sua sponte review to determine whether Plaintiff's 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 named defendant who is immune from such relief. If the Complaint suffers from one or more of these deficiencies, it must be dismissed under 28 U.S.C. § 1915(e)(2)(B).
By 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 authorized the federal courts to sua sponte dismiss an in forma pauperis Complaint if satisfied that the Complaint is frivolous or malicious. Denton, 504 U.S. at 31; see 28 U.S.C. § 1915(e)(2)(B)(I).
Viewing an in forma pauperis Complaint through lens of § 1915(e)(2)(B)(i), the Court asks whether the Complaint raises a claim with a rational or arguable basis in fact or law; if not, it is frivolous or malicious and subject to dismissal. See Neitzke, 490 U.S. at 328-29; see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable legal basis when, for example, the defendant is immune from suit or when the 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 irrational. See Denton, 504 U.S. at 32-33; see also Lawler, 898 F.2d at 1199.
Congress has also authorized the sua sponte dismissal of a Complaint that fails to state a claim upon which relief may be granted or that seeks monetary relief from a defendant who is immune from such relief in this Court. 28 U.S.C. § 1915(e)(2)(B)(ii-iii). The Court's preliminary review of Plaintiff's pro se Complaint assumes the truth of her allegations and construes them liberally in Plaintiff's favor. See Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000); see also Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995).
Plaintiff's Complaint in the instant case does not raise malicious, delusional, or wholly irrational allegations. Construing the Complaint liberally in Plaintiff's favor, she states sufficient allegations to support a non-speculative claim under 42 U.S.C. § 1983, specifically a violation of her constitutionally protected right of association to participate in the upbringing of her grandchildren. See Johnson v. City of Cincinnati, 310 F.3d 484, 499 (6th Cir. 2002) ("nothing in our tradition or precedent can credibly be read to suggest that the right to participate in child rearing does not extend to grandparents.").
Accordingly, Plaintiff's Complaint is not subject to dismissal under 28 U.S.C. § 1915(e)(2).
IT IS THEREFORE ORDERED THAT:
1. The United States Clerk of Court serve a copy of the Complaint (Doc. #2), a summons, and this Order upon Defendant as directed by Plaintiff. All costs of service shall be advanced by the United States.
2. Plaintiff must serve Defendant — or its attorney in the event the attorney's appearance is entered in the record — with a copy of every document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date and a true and correct copy of any document mailed to defendant or its attorney. Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk of Court or that fails to include a certificate of service will be disregarded by the Court.
3. Plaintiff must inform the Clerk of Court promptly of any changes of address she has during the pendency of this lawsuit. Failure to do so may result in dismissal of this case for failure to prosecute.