United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.
brings this case pro se and was allowed to proceed
in forma pauperis under 28 U.S.C. § 1915. This
action is subject to judicial screening under 28 U.S.C.
§ 1915(e)(2)(B)(ii), which provides that the court
“shall dismiss” actions brought in form
pauperis “at any time if the court determines that
. . . the action . . . fails to state a claim on which relief
may be granted.” For the reasons stated herein, I
recommend that the complaint be dismissed.
of a complaint for failure to state a claim on which relief
may be granted under § 1915(e)(2) is appropriate
“only if it appears beyond a doubt that the plaintiff
can prove no set of facts in support of [her] claim that
would entitle [her] to relief.” Brown v.
Bargery, 207 F.3d 863, 867 (6th Cir. 2000). To survive
dismissal under § 1915(e)(2)(B),
[a] complaint must contain “'either direct or
inferential allegations respecting all the material elements
to sustain a recovery under some viable legal
theory.'” Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.3d 434, 436 (6th Cir. 1988) (quoting Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106
(7th Cir. 1984)). The court is not required to accept
non-specific factual allegations and inferences or
unwarranted legal conclusions. See Lillard v. Shelby
County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996);
Morgan v. Church's Fried Chicken, 829 F.2d 10,
12 (6th Cir. 1987).
Mitchell v. Cmty. Care Fellowship, 8 Fed.Appx. 512,
513 (6th Cir. 2001).
lists two defendants in the caption of her complaint: Allegan
County Probate Court Judge Michael Buck and Lorrain Pope.
Plaintiff's pleading consists of one handwritten page and
a copy of a February 27, 2018, order from the Michigan
Supreme Court denying Angel Bartlett's application for
leave to appeal. The nature of her complaint is unclear
beyond expressing her dissatisfaction with probate court
orders and the order entered by the Michigan Supreme
Court has a duty to read a pro se plaintiff's
complaint indulgently. See Haines v. Kerner, 404
U.S. 519 (1972); Kent v. Johnson, 821 F.2d 1220,
1223-24 (6th Cir. 1987). Upon a liberal reading of
plaintiff's complaint, the complaint is subject to
dismissal for lack of subject matter jurisdiction and failure
to state a claim upon which relief may be granted under 28
U.S.C. § 1915(e)(2)(B)(ii). The complaint is incoherent,
and I can discern no substantial federal question that would
provide subject matter jurisdiction. “[A] district
court may, at any time, sua sponte dismiss a
complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when
the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no
longer open to discussion.” Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999). The attenuated,
unsubstantial allegations in the complaint are insufficient
to establish subject matter jurisdiction in this Court.
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). For the same reasons that I
recommend dismissal of the complaint, I recommend that,
should the Court dismiss the action, it also find that there
is no good-faith basis for an appeal.
foregoing reasons, I recommend that the complaint be
dismissed for failure to state a federal claim under 28
U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject
matter jurisdiction under Fed.R.Civ.P. 12(b)(1). I further
recommend that the Court find no good-faith basis for appeal.
OBJECTIONS to this Report and Recommendation must be filed
and served within fourteen days of service of this notice on
you. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). All
objections and responses to objections are governed by W.D.
Mich. LCivR 72.3(b). Failure to file timely and specific
objections may constitute a waiver of any further right of
appeal. See Thomas v. Arn, 474 U.S. 140 (1985);
Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d
452, 458 (6th Cir. 2012); United States v. Branch,
537 F.3d 582, 587 (6th Cir. 2008). General objections do not