Opinion
Case No. 3:09cv00040.
March 16, 2009
ORDER
Plaintiff James D. Morrow, a resident of the City of Dayton, Ohio, brings this case pro se against several defendants including, for example, Miami Township, Ohio; Chief of Police for Miami Township; and Officer Young of the Miami Township Police.
The Court previously granted Plaintiff's Application to Proceed in forma pauperis 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 they are 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 or "wholly incredible." See Denton, 504 U.S. at 32; 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).
In the instant case, Plaintiff's pro se Complaint does not specifically state which federal law the Defendants violated. Despite this, construing the Complaint liberally in Plaintiff's favor and accepting his factual allegations as true, it cannot be concluded at this early juncture of the case that the Complaint is frivolous, malicious, or fails to state a claim for relief. His Complaint is not frivolous because he has not alleged delusional or irrational facts. If, moreover, the facts he alleges are accepted as true and construed liberally in his favor, it cannot be concluded at this early juncture of the case that the Complaint fails to state a federal constitutional claim.
Accordingly, Plaintiff's Complaint is not subject to dismissal under 28 U.S.C. § 1915(e)(2)(B).
IT IS THEREFORE ORDERED THAT:
1. The United States Clerk of Court serve a copy of the Complaint, summons, and this Order upon the named defendants as directed by Plaintiff. All costs of service shall be advanced by the United States.
2. Plaintiff must serve the named defendants — or their attorney in the event an 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 his 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 which he has during the pendency of this lawsuit. Failure to do so may result in dismissal of his case for failure to prosecute.