Herbert v. American Truck Driving School

Full title: DAVID HERBERT, Plaintiff, v. AMERICAN TRUCK DRIVING SCHOOL, and CAROLYN…

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jul 23, 2009

Case No. 08-CV-11582 (E.D. Mich. Jul. 23, 2009)

Opinion

Case No. 08-CV-11582.

July 23, 2009

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

JOHN O'MEARA, District Judge

Plaintiff David Herbert filed a pro se complaint on April 14, 2008, along with an application to proceed in forma pauperis. The court finds Plaintiff's application to proceed in forma pauperis to be facially sufficient and, therefore, grants Plaintiff's motion to proceed without prepayment of fees. See 28 U.S.C. § 1915(a); Gibson v. R.G. Smith Co., 915 F.2d 260, 262 (6th Cir. 1990).

Once a court grants a plaintiff permission to proceed in forma pauperis, it must review the complaint pursuant to 28 U.S.C. § 1915(e). The court shall dismiss the case if the court finds that it is "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous under § 1915 if it "lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in law when "indisputably meritless legal theories underlie the complaint." Brand v. Motley, 526 F.3d 921, 923 (6th Cir. 2008) (internal citations omitted). " Sua sponte dismissal is appropriate if the complaint lacks an arguable basis when filed."Goodell v. Anthony, 157 F.Supp.2d 796, 799 (E.D. Mich. 2001).

Pro se plaintiff's pleadings are liberally construed. Middleton v. McGinnis, 860 F.Supp.2d 391, 392 (E.D. Mich. 1994) (citingEstelle v. Gamble, 429 U.S. 97, 106 (1976)). Pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers." El Bey v. Roop, 530 F.3d 407, 413 (6^th Cir. 2008) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). However, courts cannot create a claim for a pro se plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6^th Cir. 1975). The court cannot transform "from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party."Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985) (quoted in Crawford v. Crestar Foods, 2000 U.S. App. Lexis 6695 at *5 (6^th Cir. 2000)).

Having construed Plaintiff's complaint liberally, the court concludes that it lacks an arguable basis on law. Defendants allegedly billed Plaintiff for a student loan, which Plaintiff insists he did not authorize. Defendants then waited twenty-two years to make the Plaintiff aware of this debt. As a result, Plaintiff alleges that Defendants deprived him of his constitutional right under the Fourth Amendment to be secure in his "house, person, paper and effects" by harming Plaintiff's credit rating. However, private parties are generally not liable for alleged violations of the Fourth Amendment, and Plaintiff has failed to allege that Defendants acted as a states actors under any of the three tests set forth in Tafts v. Proctor, 316 F.3d 584, 590-91 (6^th Cir. 2003). Therefore, Plaintiff's complaint lacks an arguable basis in law.

Therefore, IT IS HEREBY ORDERED that Plaintiff's application to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the complaint be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

Based on the preceding order, any appeal by Plaintiff would be frivolous and not in good faith. 28 U.S.C. § 1915(a)(3); Goodell, 157 F.Supp.2d at 802.