Opinion
Civil Action No. 2:21-cv-00002
02-17-2021
HERBERT L. JOSEPH, II Plaintiff, v. PROGRESSIVE INSURANCE CO., and FAIRMONT HOTEL OF PITTSBURGH, Defendants.
District Judge William S. Stickman
REPORT AND RECOMMENDATION
I. RECOMMENDANTION
It is respectfully recommended that Plaintiff's civil action, which was commenced in forma pauperis, be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted.
II. REPORT
Plaintiff, Herbert L. Joseph, II ("Plaintiff"), proceeding pro se, instituted this civil action by filing a Motion for Leave to Proceed in Forma Pauperis on January 4, 2021. ECF No. 1. The Motion was granted on January 5, 2021 (ECF No. 3) and the Complaint was docketed that same day. ECF No. 4. The Complaint is incomprehensible as to the facts and claims Plaintiff alleges against the named Defendants, Progressive Insurance Company and the Fairmont Hotel of Pittsburgh. Consequently, this Court entered a detailed Memorandum Order on January 11, 2021 (ECF No. 6) instructing Plaintiff to amend his Complaint because it is deficient in that it does not comply with the Federal Rules of Civil Procedure, including Rule 8(a). The Court's Order was set out in clear step by step instructions as to what Plaintiff should include in the amended complaint and afforded him until February 11, 2021 to file the amended complaint.
The original complaint did make clear that Plaintiff is seeking one (1) billion dollars in damages.
On January 19, 2021, Plaintiff filed an Amended Complaint. ECF No. 8. The document consisted of four (4) one-sentenced paragraphs and was entitled "Plaintiff's First Amended Complaint directing the U.S. Marshall to Effectuate Service Against Named Defendants." On January 12, 2021, the Court explained to Plaintiff in a text order denying his Motion for Service as moot, that "[o]nce the Amended Complaint is filed and the Court finds it should be served, an order will be entered directing the U.S. Marshall to serve the named Defendants." ECF No. 7.
The Amended Complaint filed by Plaintiff at ECF No. 8 fails to set out any facts whatsoever. He merely incorporates "[a]ll materials and exhibits previously submitted in the instant case[,]" in complete disregard for the Court's directive in its Memorandum Order (ECF No. 6) that the Amended Complaint should not refer back to the original complaint.
Pertinent to the case at bar is the authority granted to federal courts for the sua sponte dismissal of claims in IFP proceedings. Specifically, § 1915(e), as amended, requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). "To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and § 1915(d) both counsel dismissal." Neitzke v. Williams, 490 U.S. 319, 328 (1989) (footnote omitted).
In reviewing complaints under 28 U.S.C. § 1915(e), a federal court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). D'Agostino v. CECOM RDEC, 436 F. App'x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester Cnty. Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). --------
Here, the Court is unable to discern the substance of Plaintiff's Complaint. The Plaintiff has failed to clarify his claim(s) when given the opportunity to amend as provided by this Court's Memorandum Order of January 11, 2021. ECF No. 6. Therefore, the Court must dismiss this civil action for failure to state a claim.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that Plaintiff's civil action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
Dated: February 17, 2021
BY THE COURT
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge Cc: Herbert L. Joseph, II
432 Parkwood Road
Pittsburgh, PA 15210