Harding v. US Attorney's Office

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANGELA HARDING,

Plaintiff,

Civil Action 2:21-cv-3572

v. Chief Judge Algenon L. Marbley

Magistrate Judge Chelsey M. Vascura

US ATTORNEY’S OFFICE, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Angela Harding, an Ohio resident proceeding without the assistance of counsel,

has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. All judicial officers who render

services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This

matter is also before the Court for the initial screen of Plaintiff’s Complaint as required by 28

U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C. § 1915(e)(2).

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which

provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

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of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, when

considering a pro se plaintiff’s Complaint, a Court “must read [the allegations] with less

stringency . . . and accept the pro se plaintiff’s allegations as true, unless they are clearly

irrational or wholly incredible.” Reynosa v. Schultz, 282 F. App’x 386, 389 (6th Cir. 2008)

(citing Denton v. Hernandez, 504 U.S. 25, 33 (1992) (internal citation omitted).

II.

Plaintiff’s Complaint lacks clarity and contains numerous “irrational or wholly

incredible” allegations. Plaintiff names as Defendants the United States Attorney’s Office;

Chance Harding, who she identifies as her brother; and Fred Pancake, who she neglects to

further identify. Plaintiff generally alleges that an investigation is ongoing and that as a result,

she feels harassed, her cat has been killed, dogs without owners are “stalking” her neighborhood,

and cameras have been installed—without her permission—in her living room and other rooms

where she gets dressed. (Compl., ECF No. 1-4 at PAGEID # 12.) Plaintiff also alleges that she

has filed for protection orders “against vice and sheriff [department].” (Id.) Finally, she alleges

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that she believes that her brother, Defendant Chance Harding, is working with the investigation,

which prompted him to engage in domestic violence that resulted in her suffering a contusion to

her rib. Although Plaintiff does not identify who is conducting the alleged investigation or what

the investigation is about, she names the U.S. Attorney’s Office as a Defendant and alleges that

she called the U.S. Attorney’s Office to complain about the investigation.

The undersigned concludes that Plaintiff’s Complaint provides insufficient factual

content or context from which the Court could reasonably infer that Defendants violated

Plaintiff’s rights. Thus, Plaintiff has failed to satisfy the basic federal pleading requirements set

forth in Rule 8(a). Twombly, 550 U.S. at 555. Moreover, the allegations Plaintiff sets forth in

her Complaint are so nonsensical as to render her Complaint frivolous. For these reasons, it is

RECOMMENDED that Plaintiff’s Complaint be DISMISSED pursuant to 28 U.S.C. §

1915(e)(2) for failure to state a claim on which relief may be granted.

III.

Plaintiff’s Motion for Leave to Proceed in Forma Pauperis is GRANTED. (ECF No.

1.) For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this action

pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or

recommendations to which objection is made. Upon proper objections, a Judge of this Court

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may accept, reject, or modify, in whole or in part, the findings or recommendations made

herein, may receive further evidence or may recommit this matter to the Magistrate Judge with

instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision

of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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