United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.
a civil rights action brought by a pro se plaintiff
under 42 U.S.C. §§ 1983, 1985(3). On April 13,
2017, plaintiff filed his complaint. (ECF No. 1). The Court
granted plaintiff leave to proceed in forma
pauperis. (ECF No. 5). Plaintiff's complaint, as
amended and corrected,  names Sam Saboury, the East Lansing
Police Department, Officer Ryan Kuhn, Officer Ryan Panetta,
Officer Justan Horst, Officer Jeremy Hamilton, Comcast
Service Center, Keary Schellis, Aero Communications
Incorporated, and John and Jane Doe defendants. Plaintiff
seeks $1.2 million dollars in damages. (ECF No. 1,
should be noted that this is one in a series of lawsuits
stemming from a landlord/tenant dispute. In April 2017, SMTS
Group, LLC, the sole member of which is Sam Saboury, filed a
complaint in state district court seeking to evict plaintiff
from his apartment for nonpayment of rent. On April 27, 2017,
plaintiff removed the landlord/tenant case to this Court. On
July 31, 2017, this Court remanded the case back to the state
district court. SMTS Group v. Hardy, No. 1:17-cv-453
(W.D. Mich. July 31, 2017).
April 25, 2017, Mr. Saboury filed a petition in Ingham County
Circuit Court asking for a personal protection order against
plaintiff. On May 4, 2017, plaintiff removed the case to this
Court. On February 23, 2018, this Court remanded the matter
back to the Ingham County Circuit Court. Saboury v.
Hardy, 1:17-cv-454 (W.D. Mich. Feb. 23, 2018).
instant case is before the Court on defendants' Rule
12(b)(6) motions seeking dismissal of plaintiff's claims.
(ECF No. 28, 32, 41, 43). Plaintiff has filed his
response. (ECF No. 34, 47).
review, I recommend that all plaintiff's claims against
John and Jane Doe defendants be dismissed with prejudice for
failure to state a claim under the statutory authority
provided by 28 U.S.C. § 1915(e)(2). I recommend that
defendants' motions be granted and that a judgment be
entered dismissing all plaintiff's claims against
defendants with prejudice.
complaint that fails to allege “ ‘enough facts to
state a claim to relief that is plausible on its face'
” must be dismissed for failure to state a claim.
Traverse Bay Area Intermediate Sch. Dist. v. Michigan
Dep't of Educ., 615 F.3d 622, 627 (6th Cir. 2010)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A plaintiff must ‘plead [ ]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.' ” Albrecht v. Treon, 617 F.3d
890, 893 (6th Cir. 2010) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “A plaintiff falls short if
he pleads facts >merely consistent with the
defendant's liability' or if the alleged facts do not
'permit the court to infer more than the mere possibility
of misconduct[.]' ” Albrecht, 617 F.3d at
893 (quoting Iqbal, 556 U.S. at 678-79).
“[T]he 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.” Iqbal, 556 U.S. at 678. In
applying these standards, the court must read plaintiff's
pro se complaint indulgently, see Haines v.
Kerner, 404 U.S. 519 (1972), and accept plaintiff's
factual allegations as true, unless they are clearly
irrational or wholly incredible. Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
Findings of Fact
suffers from mental illness, which he describes as follows:
“Schezo-Affecto, Bipolar Disorder, Learning Disability,
and Brain Damage.” (ECF No. 1, PageID.5). He resides in
apartment number three at 1624 Cambria Drive, East Lansing,
Michigan. (ECF No. 1 at PageID.3; ECF No. 1-1, PageID.37-41).
Sam Saboury is his landlord. (ECF No. 1 at PageID.3).
about October 12, 2016, plaintiff was performing work for Mr.
Saboury. Plaintiff was cleaning a house in Lansing. Mr.
Saboury placed several calls to plaintiff to make sure that
plaintiff was still working. When plaintiff returned to his
apartment, he found his box of legal files in disarray and
some of his paperwork regarding Mr. Saboury was missing.
(Id. at PageID.8, 19).
about January 17, 2017, plaintiff went to apartment number
six on the floor above him to complain about the tenants
“stumping and banging on the floor of their
apartment.” (Id. at PageID.6-7). One of the
two white female tenants in apartment number six called the
East Lansing Police Department. Plaintiff states that he is a
black male. (Id. at PageID.7). He alleges that one
of two women residing in apartment six was handicapped and
she had a prosthetic leg. Plaintiff attributes
“hopping, stumping and banging” to her hopping
“all day and night” after removing her prosthetic
leg. (Id. at PageID.7, 11). Officer Ryan Kuhn and
another officer responded to this complaint. Plaintiff was
advised not to repeat his actions because one of the two
women reported that his actions made her “fear for
her life.” (Id. at PageID.7, 10).
began sending papers that he labeled as “notices”
to his landlord. Among other things he complained that the
woman with the prosthetic leg should not have been allowed to
move into ...