Opinion
Civil Action 2:18-cv-1251
10-18-2018
PAULA ZELESNIK, Plaintiff, v. THE OHIO STATE UNIVERSITY, et al., Defendants.
Judge James L. Graham
ORDER and REPORT AND RECOMMENDATION
Plaintiff, Paula Zelesnik, an Ohio resident proceeding without the assistance of counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court GRANTS Plaintiff's request to proceed in forma pauperis. 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). This matter is also before the Court for the initial screen of Plaintiff's Complaint as required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff's Complaint, or any portion of it, which 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 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow, it is RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to "lower judicial access barriers to the indigent." Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, "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.'" Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which provides in pertinent part as follows:
Formerly 28 U.S.C. § 1915(d).
(2) 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--
* * *
(B) the action or appeal--
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court's determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted.(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) "imposes legal and factual demands on the authors of complaints." 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require "'detailed factual allegations,' . . . [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,'" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct." Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, when considering a pro se plaintiff's Complaint, a Court "must read [the allegations] with less stringency . . . and accept the pro se plaintiff's allegations as true, unless they are clearly irrational or wholly incredible." Reynosa v. Schultz, 282 F. App'x 386, 389 (6th Cir. 2008) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992) (internal citation omitted).
II.
Plaintiff brings this action against The Ohio State University, The Ohio State Newman Center, Senator Sherrod Brown, Senator Rob Portman, Congressman Steve Chabot, Governor John Kasich, and Ohio Attorney General Mike Dewine. According to the Complaint, because of her support of John Kasich's policies, she has been denied entrance to classes to earn a principle's license, denied the ability to repay her student loans, denied renewal of her teacher's license, and denied retirement benefits "from all the institutions in Ohio." (Pl.'s Compl. 3, ECF No. 1-1.) Plaintiff also alleges that she has suffered "rape, housing fraud, false arrest, and false incarceration twice." (Id.) Plaintiff further alleges that the General Electric Company tried to murder her in jail and also when she was at a hospital. Finally, Plaintiff alleges that she was assaulted several times at an Alcoholics Anonymous meeting and that she has received death threats from Senator Rob Portman. (Id.) In terms of relief, Plaintiff seeks $100 billion.
Plaintiff also identifies a related case that she filed in the Southern District of Ohio, Western Division, Zelesnik v. General Electric, Inc., Case No. 1:18-cv-433 (the "433 Case") in which Plaintiff sued a number of defendants for attempted murder and fake judgements and also sued Senator Portman for refusing to grant her protection orders. The Court in the 433 Case adopted the Magistrate Judge's Report and Recommendation recommending dismissal pursuant to § 1915(e)(2) for failure to state a claim and entered judgment dismissing the case on October 3, 2018. (433 Case, ECF Nos. 6, 10, and 11.)
The undersigned concludes that Plaintiff's Complaint provides insufficient factual content or context from which the Court could reasonably infer that Defendants violated Plaintiff's rights. Rather, the allegations Plaintiff sets forth in her Complaint are so implausible and nonsensical as to render her Complaint frivolous. A claim is frivolous if it lacks "an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The former occurs when "indisputably meritless" legal theories underlie the complaint, and the latter when it relies on "fantastic or delusional" allegations. Id. at 327-28. This Court is not required to accept the 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) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). Here, Plaintiff's allegation that Defendants denied her certain benefits and that they raped her, falsely arrested her, and attempted to murder her are "clearly irrational or wholly incredible." Reynosa, 282 F. App'x at 389. It is therefore RECOMMENDED that the Court dismiss this action for failure to state a claim on which relief may be granted.
III.
Plaintiff's Motion for Leave to Proceed In Forma Pauperis is GRANTED. (ECF No. 1.) For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the District Judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE