Cone v. Townsend, Tomaio, & Newmark, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MENSAH CONE, )

)

Plaintiff, )

)

v. ) No. 4:21-cv-00524-JCH

)

TOWNSEND, TOMAIO, )

& NEWMARK, LLC, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Mensah Cone for leave to

commence this civil action without prepayment of the required filing fee. (Docket No. 2). Having

reviewed the motion, the Court finds that it should be granted. See 28 U.S.C. § 1915(a)(1).

Additionally, for the reasons discussed below, the Court will dismiss this action without prejudice

for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit

of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”

means that if the essence of an allegation is discernible, the district court should construe the

plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal

framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se complaints

are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.

Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (8th

Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just

because an additional factual allegation would have formed a stronger complaint”). In addition,

affording a pro se complaint the benefit of a liberal construction does not mean that procedural

rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed

without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a self-represented litigant who brings this civil action pursuant to the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. (Docket No. 1 at 5). He names the

law firm of Townsend, Tomaio, & Newmark, LLC and attorney Gregory Pasler as defendants.

(Docket No. 1 at 3). The complaint is typewritten and not on a Court-provided form. It is 253-

pages long, with ten separate causes of action containing a total of 214 counts. Eight exhibits are

also attached.1 The exhibits include a copy of the retainer agreement between plaintiff and

defendants, a payment schedule, an excerpt from a trial transcript, a court order granting

defendants an attorney’s lien, an email from a law clerk, two affidavits in which plaintiff purports

to recreate transcripts from court hearings, and a letter from plaintiff to the Superior Court of New

Jersey.

In the complaint, plaintiff alleges that defendants are “debt collectors” for purposes of the

FDCPA. (Docket No. 1 at 6). The debt arose from legal services provided by defendants in

plaintiff’s complaint for divorce, which was filed in the Superior Court of New Jersey, Chancery

Division, Essex County. (Docket No. 1 at 11). Specifically, plaintiff entered into an “Agreement

to Provide Legal Services” with defendants on August 11, 2017. (Docket No. 1-1 at 3). The

agreement provided for an initial retainer of $15,000, and an incremental retainer of $5,000.

(Docket No. 1-1 at 4). With the exception of certain anticipated costs, the agreement required

plaintiff to make payment within ten days of receiving an invoice showing a balance due. (Docket

No. 1-1 at 7). The agreement provided that plaintiff would pay 12% simple interest on any overdue

balance. Plaintiff signed this agreement. (Docket No. 1-1 at 9).

Initially, plaintiff made payments to defendants, including the initial trial retainer. (Docket

No. 1 at 14; Docket No. 1-1 at 15). At some point, however, defendants began contacting plaintiff

with regard to additional payments for work that had been done. (Docket No. 1 at 82-83). More

precisely, plaintiff alleges that defendants sent “in excess of thirty…money demands” to him

“through electronic wire.” Defendants also attempted to arrange at least a partial payment of his

1 The Court will treat these attachments as part of the pleadings. See Fed. R. Civ. P. 10(c) (“A copy of a written

instrument that is an exhibit to a pleading is part of the pleading for all purposes”). See also Pratt v. Corrections Corp.

of America, 124 Fed. Appx. 465, 466 (8th Cir. 2005) (explaining that “the district court was required to consider the

allegations not only in [plaintiff’s] pro se complaint, but also in his motion to amend, his response to defendants’

motion to dismiss, and the attachments to those pleadings”).

legal fees. (Docket No. 1 at 84-85). Plaintiff was advised that if he did not make a partial payment,

he would be asked to sign a substitution of attorney. (Docket No. 1 at 85). Thereafter, defendants

would “pursue all actions to collect on the outstanding balance.”

Ultimately, defendants filed a motion to be relieved as plaintiff’s counsel. (Docket No. 1

at 88). Defendants also petitioned for an attorney’s lien against plaintiff in the Superior Court of

New Jersey. (Docket No. 1-1 at 24). On January 28, 2021, the Superior Court granted defendants

an attorney’s lien against plaintiff for $265,150.70. (Docket No. 1 at 72; Docket No. 1-1 at 25).

The amount represented the value of unpaid services, as well as the interest set forth in the

agreement. (Docket No. 1-1 at 25).

Plaintiff alleges that defendants’ efforts to collect their attorney’s fees violated the FDCPA.

In particular, he presents ten separate causes of action under the FDCPA, encompassing 214

counts.

First, in counts 1 through 4, plaintiff asserts a violation of 15 U.S.C. § 1692c. (Docket No.

1 at 110-112). He accuses defendants of communicating with a third party “in connection with the

collection of [his] debt,” without his consent. Specifically, plaintiff states that defendants

communicated with three separate attorneys from the law firm of Rivkin Radler, LLP, and with

the Superior Court of New Jersey.

Second, in counts 5 through 51, plaintiff accuses defendants of violating 15 U.S.C. §

1692d. (Docket No. 1 at 113-117). He does not provide any facts, but simply states that defendants

“harassed and abused” him “through electronic communications…for money demands,” and by

taking legal action against him to recover the debt.

Third, in counts 52 to 137, plaintiff alleges a violation of 15 U.S.C. § 1692e. (Docket No.

1 at 118-168). These 85 counts consist of various complaints. Count 52 asserts that defendants

provided false representation “by giving testimony for the adversary in open court.” (Docket No.

1 at 118). In counts 53 to 55, plaintiff declares that defendants possessed “no bond relative to debt

collection efforts.” (Docket No. 1 at 118-120). Count 56 alleges false representation during an

email exchange, which plaintiff terms a “collateral agreement,” while in counts 57 through 58, he

states that false representation was involved in the agreement he signed with defendants. (Docket

No. 1 at 120-121). Similarly, in counts 59 through 61, plaintiff contends that defendants’

substitution of attorney form created a “false impression.” (Docket No. 1 at 121-123). Finally, in

counts 62 to 137, plaintiff concludes there were false representations in the invoices defendants

sent to him. (Docket No. 1 at 123-168).

Fourth, in counts 138 to 179, plaintiff alleges a violation of 15 U.S.C. § 1692e(2). More

precisely, he states that defendants used electronic communications in order to convey false,

deceptive, and misleading representations about the character or amount of debt that he owed.

(Docket No. 1 at 168-169).

Fifth, in counts 180 to 195, plaintiff again contends that defendants violated 15 U.S.C. §

1692e in a variety of ways. (Docket No. 1 at 169-177). For instance, in count 181, plaintiff

complains that defendants used false representations to petition for a “charging lien” against him

in the Superior Court.2 (Docket No. 1 at 170). Likewise, he states that defendants used false

representations in filing and serving a reply certification, a certification of attorney services, a

notice of cross-motion, and a notice of motion to modify plaintiff’s child support obligation, as

well as by conveying to him a copy of the Superior Court’s order entering an attorney’s lien against

him. (Docket No. 1 at 171-177).

2 A “charging lien” refers to “an attorney’s right to have the fees and costs due the attorney for services in a suit

secured out of the judgment or recovery in that suit.” In the Matter of Crisp, 92 B.R. 885, 891 (Bankr. W.D. Mo.

1988).

Sixth, in counts 196 and 197, plaintiff asserts a violation of 15 U.S.C. § 1692e(5), arguing

that defendants made threats to him that were not legally actionable. (Docket No. 1 at 177-178).

These two counts are premised on the fact that defendants advised plaintiff that they would file a

motion to be relieved as counsel, and pursue all actions to collect on the outstanding balance, if

plaintiff did not make at least a partial payment.

Seventh, in counts 198 through 200, plaintiff alleges a violation of 15 U.S.C. § 1692f,

regarding unfair practices. (Docket No. 1 at 179-182). These “unfair practices” apparently relate

to payment requests made by defendants. Eventually, plaintiff states that he made certain payments

to defendants “under duress.”

Eighth, in count 201, plaintiff states that defendants violated 15 U.S.C. § 1692g, regarding

the validation of debts. (Docket No. 1 at 182-183). Plaintiff alleges that defendants did not establish

initial communication with or provide written notice to him as to the debt amount prior to June 10,

2020. On June 10, 2020, defendants served him with an order to show cause.

Ninth, in counts 202 to 213, plaintiff insists that defendants used deceptive forms in

contravention of 15 U.S.C. § 1692j. (Docket No. 1 at 183-191). His chief argument in support of

this position appears to be a minor difference in the caption of the complaint for divorce and the

caption of subsequent legal filings. More to the point, plaintiff states that the divorce complaint

caption reads “MENSAH CONE, Plaintiff v. VALERIA CONE, Defendant,” while defendants

filed legal documents in which the caption reads “MENSAH CONE, Plaintiff vs. VALERIA

CONE, Defendant.” In other words, plaintiff finds deceptiveness in the use of “vs.” for versus,

rather than “v.”

Finally, in count 214, plaintiff asserts that because of defendants’ violations of the FDCPA,

he has sustained actual damages and is entitled to relief. (Docket No. 1 at 192). He seeks an order

permanently enjoining defendants from enforcing the attorney’s lien issued by the Superior Court

of New Jersey. (Docket No. 1 at 193). Plaintiff also requests an unspecified amount of damages.

Following the submission of his complaint, plaintiff filed six exhibits and a cover letter

relating to the removal of a New Jersey case identified as Case Number A-001858-20. (Docket

No. 8). The six exhibits include a notice of filing stamped by the Superior Court of New Jersey,

Appellate Division; a certified mail receipt of the notice of removal to the Superior Court of New

Jersey, Appellate Division; a stamped submission of plaintiff’s notice of removal; a copy of the

order entering an attorney’s lien against plaintiff and in favor of defendants; a printout of email

exchanges between plaintiff and the appellate court case manager; and an order from the Superior

Court of New Jersey, Appellate Division, denying plaintiff’s motion for transcripts at public

expense.

On June 29, 2021, plaintiff submitted a document titled “Judicial Notice.” (Docket No. 9).

The caption indicated that it was intended for the United States Court of Appeals for the Eighth

Circuit, but plaintiff filed it with this Court. He also copied the Federal Bureau of Investigation,

the Missouri Attorney General’s Office, the Administrative Hearing Commission, the St. Louis

Circuit Attorney, the United States Attorney, and Supreme Court Justice Brett Kavanaugh. (Docket

No. 9 at 2). In this document, plaintiff complains about “the delay and/or denial in the docketing

of the Notice of Removal and supporting documents submitted to the U.S. District Court for the

Eastern District of Missouri on or about May 21, 2021 and forwarded to the U.S. Court of Appeals

for the 8th Circuit.” (Docket No. 9 at 3). Parts of the document appear to consist of a contract in

which plaintiff purports to bind “respondents” and to hold them liable if they failed to respond

within seven days. (Docket No. 9 at 8-9).

On August 6, 2021, plaintiff filed a document titled “Notice of Attorney No Authority,

Notice of Valeria Cone, Defendant’s Waiver of Transfer of Marital Property Deed Under

Judgment of Divorce, Notice of Default Opportunity to Cure.” (Docket No. 10). As before, this

document was sent to this Court, along with the United States Court of Appeals for the Eighth

Circuit, the Federal Bureau of Investigation, the Missouri Attorney General’s Office, the

Administrative Hearing Commission, the St. Louis Circuit Attorney, and the United States

Attorney. Plaintiff purports to provide notice to the aforementioned respondents that they are “in

default of an opportunity to respond to the Contract” that he had earlier submitted. (Docket No. 10

at 4). Ultimately, he seeks to have his notice of removal docketed, though he also presents

interrogatories and requests for admissions.

On August 17, 2021, plaintiff filed a document titled “Notice Re: Impossibility.” (Docket

No. 11). In this so-called “notice,” he states that “certain requirements for attorneys” do not apply

to him. Plaintiff also includes a series of somewhat puzzling statements, including “Mensah Cone

is not a person,” “Mensah Cone is not the agent for MENSAH CONE,” Mensah Cone is not the

representative for MENSAH CONE,” and “Mensah Cone is not the fiduciary for MENSAH

CONE.” (Docket No. 11 at 2-3). He therefore concludes that it is impossible for him to complete

a “disclosure statement.”

Discussion

Plaintiff is a self-represented litigant who brings this civil action under the FDCPA against

defendants Townsend, Tomaio, & Newmark, LLC and attorney Gregory Pasler. Because plaintiff

is proceeding in forma pauperis, the Court reviewed his complaint pursuant to 28 U.S.C. § 1915.

Based on that review, and for the reasons discussed below, the Court must dismiss this action

without prejudice for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

A. The FDCPA

Plaintiff purports to bring this action under the FDCPA, alleging ten separate causes of

action under its provisions. “The purpose of the FDCPA is to eliminate abusive debt collection

practices by debt collectors, and to insure that those debt collectors who refrain from using abusive

debt collection practices are not competitively disadvantaged.” Strand v. Diversified Collection

Serv., Inc., 380 F.3d 316, 318-19 (8th Cir. 2004). As the United States Court of Appeals for the

Eighth Circuit has explained:

In the typical debt collection scenario, a creditor such as a retailer or

credit card company originates consumer debt and initially seeks to

collect the debt if the consumer does not pay on time. If the debt

becomes seriously overdue, the originating creditor contracts with

an independent debt collector, who too often engaged in a myriad of

abusive collection practices that Congress sought to restrict or

prohibit in the FDCPA.

Reygadas v. DNF Associates, LLC, 982 F.3d 1119, 1121-1122 (8th Cir. 2020). To effect this

purpose, the FDCPA authorizes private lawsuits and fines in order to prevent debt collectors from

engaging in prohibited practices. See Coyne v. Midland Funding, LLC, 895 F.3d 1035, 1037 (8th

Cir. 2018) (stating that “[t]he FDCPA is a consumer-protection statute authorizing private lawsuits

and weighty fines to deter wayward collection practices”).

In passing the FDCPA, “Congress sought to prevent abusive practices including threats of

violence; the publishing of shame lists; harassing or anonymous telephone calls; impersonating a

government official or attorney; obtaining information under false pretenses; and collecting more

than is legally owing.” McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 913 (8th Cir. 2014). To

that end, the FDCPA prohibits a number of different debt collection practices. See Nelson v.

Midland Credit Mgmt., Inc., 828 F.3d 749, 751 (8th Cir. 2016). For instance, a debt collector is not

allowed to “engage in any conduct the natural consequence of which is to harass, oppress, or abuse

any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. The FDCPA also

generally prohibits debt collectors from using any false, deceptive, or misleading representation or

means in debt collection. Demarais v. Gurstel Chargo, P.A., 869 F.3d 685, 694 (8th Cir. 2017). See

also 15 U.S.C. § 1692e. Furthermore, a debt collector is not allowed to use unfair or

unconscionable means in order to collect or attempt to collect a debt. 15 U.S.C. § 1692f. See also

Klein v. Credico, Inc., 922 F.3d 393, 397 (8th Cir. 2019).

B. Defendants are Not “Debt Collectors” Under the FDCPA

“The FDCPA imposes civil liability only on debt collectors, as they are defined by the

statute.” Volden v. Innovative Financial Systems, Inc., 440 F.3d 947, 950 (8th Cir. 2006). See also

Lester E. Cox Medical Center, Springfield, Mo. v. Huntsman, 408 F.3d 989, 992 (8th Cir. 2005)

(“Designation as a debt collector is the starting point for liability under the [FDCPA]”). Pursuant

to the FDCPA, a “debt collector” is “any person who uses any instrumentality of interstate

commerce or the mails in any business the principal purpose of which is the collection of any

debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or

asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The Supreme Court has termed this

provision the “primary definition” of “debt collector.” Obduskey v. McCarthy & Holthus LLP, 139

S.Ct. 1029, 1036 (2019). For the purposes of § 1692a(6), “debt collector” also encompasses “any

person who uses any instrumentality of interstate commerce or the mails in any business the

principal purpose of which is the enforcement of security interests.” 15 U.S.C. § 1692a(6). The

Supreme Court has referred to this as the “limited-purpose definition” of “debt collector.”

Obduskey, 139 S.Ct. at 1036.

“Because Congress’s focus was on the practice of independent debt collectors, the statute

excludes from the definition of ‘debt collector’ any creditor ‘collecting his own debts’ using his

own name, and employees and affiliates ‘collecting debts for such creditor.’” Reygadas, 982 F.3d

at 1122. That is, under 15 U.S.C. § 1692a(6), a person must “attempt to collect debts owed another

before [they] can ever qualify as a debt collector.” Henson v. Santander Consumer USA Inc., 137

S.Ct. 1718, 1724 (2017) (emphasis in original). If a person is not collecting another’s debts – that

is to say, if the person is merely a creditor – that person is not regulated by the FDCPA. See Schmitt

v. FMA Alliance, 398 F.3d 995, 998 (8th Cir. 2005) (explaining that “a distinction between creditors

and debt collectors is fundamental to the FDCPA, which does not regulate creditors’ activities at

all”). Thus, a plaintiff cannot maintain an action under the FDCPA unless the person being sued

qualifies as a “debt collector” under the statute. See Duhart v. LRAA Collections, 652 Fed. Appx.

483, 484 (8th Cir. 2016) (affirming summary judgment in favor of defendant, because defendant

“was attempting to collect its own debt”).

In this case, plaintiff has not presented any facts demonstrating that defendants are “debt

collectors” governed by the FDCPA. With regard to the “primary definition” of “debt collector,”

plaintiff has not established that defendants’ principal business purpose is the collection of any

debt, or that defendants regularly collect or attempt to collect debts owed to another. As to the

“limited-purpose definition” of “debt collector,” plaintiff does not allege that defendants use “any

instrumentality of interstate commerce or the mails in any business the principal purpose of which

is the enforcement of security interests.”

Rather than show that defendants are “debt collectors” under the FDCPA, plaintiff’s own

facts and exhibits demonstrate that they do not fit the statutory definition. First, plaintiff clearly

states that defendants are a law firm and lawyer respectively, and that he engaged their legal

services for the purpose of representing him in his divorce. He does not argue – nor would his facts

support – the proposition that defendants’ principal business purpose is collecting debts. Second,

a person or business must “attempt to collect debts owed another before [they] can ever qualify as

a debt collector.” Here, plaintiff readily admits that defendants were attempting to collect a debt

owed to them, not to a third party. The facts reveal that defendants billed plaintiff for legal services

they performed themselves, and then attempted to collect those outstanding fees by invoicing

plaintiff, and ultimately petitioning for an attorney’s lien. There is no indication that defendants

used any name other than their own in their efforts to collect the unpaid legal fees. At most,

defendants qualify as a “creditor,” in the sense that a debt was owed to them. Creditors, however,

are not regulated by the FDCPA.

In short, plaintiff signed an agreement with defendants to represent him in a New Jersey

divorce action. The “debt” at issue is comprised of the fees generated by defendants for working

on plaintiff’s case, and that were never paid. Defendants then made efforts to collect those fees, to

which plaintiff objects. Based on the foregoing, it is obvious that defendants are not the

“independent debt collectors” that Congress focused upon when creating the FDCPA. Leaving

aside plaintiff’s oft-conclusory allegations about harassment, abuse, and false representation,

defendants were collecting their own debts using their own name, and are accordingly excluded

from the statutory definition of “debt collector.” Simply put, the FDCPA does not govern

defendants’ actions.

As noted above, the Court must dismiss any case filed in forma pauperis if it fails to state

a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B). In this case, plaintiff

asserts numerous violations of the FDCPA. Despite presenting hundreds of separate counts,

plaintiff has not adduced any facts showing that defendants are covered by the Act. Quite to the

contrary, plaintiff’s own allegations and exhibits demonstrate plainly that defendants are not “debt

collectors” as defined by the FDCPA, and are therefore not governed by the FDCPA’s provisions.

Because defendants are not governed by the FDCPA, it cannot be said that they violated it.

Consequently, plaintiff has not stated a FDCPA claim. Moreover, because plaintiff has not

presented any allegations outside the FDCPA, he has not stated any claim whatsoever sufficient to

pass initial screening under § 1915. For these reasons, this action must be dismissed without

prejudice.

C. Notice of Removal

After submitting his complaint, plaintiff filed a number of documents regarding the

removal of his case from New Jersey state court to federal court. Federal law provides a procedure

for removing both civil and criminal actions. See 28 U.S.C. § 1446 (procedure for removal of civil

actions); and 28 U.S.C. § 1455 (procedure for removal of criminal prosecutions). Generally,

however, removal jurisdiction is limited, and the vindication of an individual’s federal rights is left

to the state courts except in rare situations. City of Greenwood v. Peacock, 384 U.S. 808, 828

(1966).

To remove a civil action from state court to federal court, a defendant must “file in the

district court of the United States for the district and division within which such action is pending

a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and

containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). However,

“[a] defendant may remove a state law claim to federal court only if the action originally could

have been filed there.” See In re Prempro Products Liability Litigation, 591 F.3d 613, 619 (8th Cir.

2010). See also Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005) (“A defendant may remove

a state law claim to federal court when the federal court would have had original jurisdiction if the

suit originally had been filed there”).

In this case, plaintiff has filed documents that the Court has construed as an attempt to file

a notice of removal. Removal to the Eastern District of Missouri, however, is inappropriate. As

noted above, a signed notice of removal must be filed “in the district court of the United States for

the district and division within with such action is pending.” See 28 U.S.C. § 1446(a) (emphasis

added). Plaintiff appears to want to remove a civil case from a state court of New Jersey. Leaving

aside whether he has otherwise complied with 28 U.S.C. § 1446, or whether he has adequate

grounds for seeking removal, any notice of removal would have to be filed in the United States

District Court for the District of New Jersey, Newark Division, which is the federal judicial district

in which plaintiff’s case is pending. Therefore, to the extent that plaintiff is seeking to file a notice

of removal here, that request is denied.

Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s notice of removal is DENIED.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice for

failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered

herewith.

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

Dated this _18th__ day of _October_, 2021.

_____\s\ Jean C. Hamilton________

JEAN C. HAMILTON

UNITED STATES DISTRICT JUDGE