United States District Court, W.D. Michigan
Norman A. Bird, Plaintiff,
Amy Poholski, et al., Defendants,
JANET T. NEFF JUDGE
REPORT AND RECOMMENDATION
S. CARMODY U.S. MAGISTRATE JUDGE
initiated this matter on September 26, 2016, against Amy
Poholski, John Head, Barry Community Mental Health, Mercy
Ambulance, Barry County Sheriff's Department, R. L.
Frazer, and S. T. Ware. Having granted Plaintiff's motion
to proceed as a pauper, the Court has conducted an initial
review of the complaint pursuant to 28 U.S.C. §
1915(e)(2) to determine whether it is frivolous, malicious,
or fails to state a claim upon which relief can be granted.
Having conducted this initial review, the Court concludes
that Plaintiff's complaint must be dismissed for failure
to state a claim upon which relief may be granted.
to Federal Rule of Civil Procedure 12(b)(6), a claim must be
dismissed for failure to state a claim on which relief may be
granted unless the “[f]actual allegations [are] enough
to raise a right for relief above the speculative level on
the assumption that all of the complaint's allegations
are true.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007).
Supreme Court more recently held, to satisfy this Rule, a
complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). This
plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” If the complaint simply pleads facts that
are “merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.'” Id. As the Court further
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice...Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but
it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions. Second, only a
complaint that states a plausible claim for relief survives a
motion to dismiss...Determining whether a complaint states a
plausible claim for relief will, as the Court of Appeals
observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. But where the wellpleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not
“show[n]” - “that the pleader is entitled
Id. at 1949-50 (internal citations omitted).
evaluating a complaint under Rule 12(b)(6), the Court may
consider the complaint and any exhibits attached thereto,
public records, and items appearing in the record of the
case. See Bassett v. National Collegiate Athletic
Assoc., 528 F.3d 426, 430 (6th Cir. 2008); see
also, Continental Identification Products, Inc. v.
EnterMarket, Corp., 2008 WL 51610 at *1, n.1 (W.D.
Mich., Jan. 2, 2008) (“an exhibit to a pleading is
considered part of the pleading” and “the Court
may properly consider the exhibits. . .in determining whether
the complaint fail[s] to state a claim upon which relief may
be granted without converting the motion to a Rule 56
motion”); Stringfield v. Graham, 212 Fed.Appx.
530, 535 (6th Cir. 2007) (documents “attached to and
cited by” the complaint are “considered parts
thereof under Federal Rule of Civil Procedure 10(c)”).
complaint contains conclusions and non-specific facts which
do not state a claim against any of the named defendants. The
bare bones assertions do not rise to the standard of the
previously discussed Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) or Ashcroft v. Iqbal, 556 U.S.
662 (2009). Further, there is no discernable basis for
federal jurisdiction. Evaluated pursuant to the
aforementioned standard, the Court concludes that any facts
alleged in Plaintiff's complaint, even if accepted as
true, fail to rise to the standards of Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) to state a claim upon
which relief may be granted in this court. Accordingly, the
undersigned recommends that Plaintiff's claims be
dismissed with prejudice.
reasons articulated herein, the undersigned recommends that
Plaintiff's complaint be dismissed. The Court must also
decide whether an appeal of this action would be in good
faith within the meaning of 28 U.S.C. § 1915(a)(3). See
McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.
1997). Good faith is judged objectively, Coppedge v.
United States, 369 U.S. 438, 445 (1961), and an appeal
is not taken in good faith if the issue presented is
frivolous, defined as lacking an arguable basis either in
fact or law. See Dellis v. Corr. Corp. of Am., 257
F.3d 508, 511 (6th Cir. 2001). For the same reasons that the
undersigned recommends dismissal of the action, the
undersigned discerns no good faith basis for an appeal and
recommends that, should Plaintiff appeal this decision, the
Court assess the $505.00 appellate filing fee pursuant to
§ 1915(b)(1), see McGore, 114 F.3d at 610-11.
to this Report and Recommendation must be filed with the
Clerk of Court within 14 days of the date of service of this
notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to
appeal the District Court's order. Thomas v.
Arn, 47 ...