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Rankin v. Lull

United States District Court, W.D. Michigan, Southern Division

October 20, 2017

James R. Rankin, Plaintiff,
v.
Lee g. Lull, Defendant.

          OPINION AND ORDER GRANTING MOTION TO DISMISS AND ORDER DISMISSING MOTION TO EXPEDITE

          PAUL L. MALONEY, UNITED STATES DISTRICT JUDGE

         Plaintiff James Rankin filed this lawsuit in which he complains about the denial of certain benefits for veterans. Rankin has been granted in forma pauperis status and is proceeding without counsel. Defendant Lee Lull filed a motion to dismiss. (ECF No. 9.) Rankin filed a motion to expedite the resolution of his complaint. (ECF No. 15.) This Court lacks jurisdiction to resolve Rankin's claims arising from a denial of benefits for veterans. And, Rankin has not stated a claim for which this Court may grant relief related the property tax exemption for veterans. Therefore, Lull's motion to dismiss will be granted and Rankin's motion to expedite will be dismissed a moot.

         I.

         A.

         When challenged by a motion filed under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction. EEOC v. Hosanna-Tabor Evangelical Lutheran Church and Sch., 597 F.3d 769, 776 (6th Cir. 2010) (citing Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007)). A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may take the form of a facial challenge, which tests the sufficiency of the pleading, or a factual challenge, which contests the factual predicate for jurisdiction. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 890-91 (3d Cir. 1977)); see also DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In a facial attack, the court accepts as true all the allegations in the complaint, similar to the standard for a Rule 12(b)(6) motion. Ohio Nafl Life Ins. Co., 922 F.2d at 325. In a factual attack, the allegations in the complaint are not afforded a presumption of truthfulness and the district court weighs competing evidence to determine whether subject matter jurisdiction exists. Id. In this case, Defendant has made a facial challenge to the complaint. The court accepts as true the allegations in the complaint in order to determine whether subject matter jurisdiction exists.

         B.

         Under the notice pleading requirements, a complaint must contain a short and plain statement of the claim showing how the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); see Thompson v. Bank of America, N.A., 773 F.3d 741, 750 (6th Cir. 2014) (holding that to survive a Rule 12(b)(6) motion, the complaint Amust comply with the pleading requirements of Rule 8(a)."). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A defendant bringing a motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether a cognizable claim has been pled in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). Although the court considers the well-pled factual allegations in the complaint, a motion to dismiss turns exclusively on questions of law. See Thomas v. Arn, 474 U.S. 140, 150 n.8 (1985); see also Ashcroft v. Iqbal, 556 U.S. 662, 674-75 (2009) (“Evaluating the sufficiency of the complaint is not a 'fact-based' question of law, . . . .”).

         To survive a motion to dismiss, “[t]he complaint must 'contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.'" Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015) (citation omitted). The plaintiff must provide sufficient factual allegations that, if accepted as true, are sufficient to raise a right to relief above the speculative level. Bell Atl., 550 U.S. at 555. And the claim for relief must be plausible on its face. Id. at 570. “A claim is plausible on its face if the 'plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citations omitted). When considering a motion to dismiss, a court must accept as true all factual allegations, but need not accept any legal conclusions. Ctr. for Bio-Ethical Reform, 648 F.3d at 369. Naked assertions without further factual enhancement, formulaic recitations of the elements of a cause of action, and mere labels and conclusions will be insufficient for a pleading to state a plausible claim. SFS Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (citations omitted).

         II.

         As stated previously, Rankin is proceeding without counsel. He filed his complaint using a blank form and has attached a statement in which he summarizes his interactions with Lull and sets forth the basic facts giving rise to his claims. This Court must liberally construe the pleadings and other filings of pro se parties. Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); see Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006) (citing Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972))). For the purpose of Lull's motion, the Court must assume the well-pleaded facts in the complaint are true.

         Rankin is a disabled veteran. Rankin alleges that “some years ago” he sought assistance from the Berrien County Veterans Services Office (Office). Defendant Lee Lull is the director of the Berrien County Veterans Services. Rankin asserts that he has been battling the Veteran's Administration over the “seizure” of his pension. Rankin does not provide any background for this claim or otherwise explain what occurred. Rankin states that the dispute over his pension “went the distance” and is now before Veterans Board of Appeals.

         Rankin sought assistance from the Office for a claim for benefits under 38 U.S.C. § 1151.[1] He claims that he was injured by the Veteran's Administration (VA), although he does not discuss the nature of his injury or how it occurred. Rankin insists that the Office told him that § 1151 did not apply. Rankin alleges he has since receive the relevant forms and information to complete the forms. Rankin insists the initial denial of the forms, and the denial of assistance to complete the forms gives rise to a claim for denial of his right to petition the government.

         Finally, Rankin sought a veteran's exemption for property taxes using form 21-8940. Rankin alleges that Lull stated that the exemption did not apply. According to Rankin, Lull would not provide the form or provide any assistance with the exemption form. Eventually, Rankin was able to find the exemption form and ...


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