Opinion
Case No. 3:15-132
04-16-2015
DRAKE A. EDWARDS, Plaintiff, v. DAYTON VETERANS MEDICAL CENTER, et al., Defendants.
District Judge Walter Herbert Rice
REPORT AND RECOMMENDATIONS
This action 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). § 1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma pauperis status. Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999). Filing an in forma pauperis application tolls the statute of limitations. Powell v. Jacor Communications Corporate, 320 F.3d 599 (6th Cir. 2003)(diversity cases); Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)(federal question cases).
Plaintiff Edwards brings this action against the Dayton Veterans Medical Center, a facility of the United States Veterans Administration and various personnel of that facility, to wit, Don Dix and VA police officers Neff, Able, and Kinnard. Edwards' Statement of Claim reads in its entirety: "My lawsuits are not made up if you follow 'My Fair Day' and let my peer decide instead of de-nova, sua sponte, against a pro se. I am honorable, twice honor. I petition a motion to re-open case 3:14-cv-374." (Complaint, Doc. No. 2, PageID 12).
This statement of claim plainly does not state a claim for relief against anyone and is patently frivolous. The Court cannot even guess from this statement what it is that Edwards claims any one of the Defendants did not him, much less why it was wrongful. If Edwards believe the result in 3:14-cv-374 is legally incorrect, his proper remedies are a motion to reopen the judgment or an appeal. In federal court, one does not file a new lawsuit to obtain reopening of an old one.
It is therefore respectfully recommended that this case be dismissed without prejudice for failure to state a claim upon which relief can be granted. The Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. April 16, 2015.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).