Wiley v. ECDI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHERRY ANN WILEY,

Plaintiff,

v. Civil Action 2:23-cv-138

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

ECDI (ECONOMIC COMMUNITY

DEVELOPMENT INSTITUTE), et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Sherry Ann Wiley, 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, the undersigned RECOMMENDS that the Court DISMISS Plaintiff’s Complaint to

§ 1915(e)(2).

I. STANDARD OF REVIEW

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) as part of the

statute, which provides in pertinent part:

(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; [or]

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

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 of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

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, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

Plaintiff’s Complaint alleges that she applied for a loan from Defendant Economic

Community Development Institute (“ECDI”) to provide startup funds for her nutritional

beverage company, Restore & Evolve, LLC. ECDI denied Plaintiff’s loan application for reasons

that Plaintiff alleges are false. In particular, Plaintiff alleges that ECDI relied on false

information on her credit report (e.g., that she had been lawfully evicted, had a felony conviction,

had been sued multiple times, and had defaulted on her mortgage). Plaintiff alleges that these

discrepancies must be the result of ECDI reviewing someone else’s credit history rather than her

own. Plaintiff also alleges that ECDI denied her credit based on factors that ECDI

representatives told her would not be a barrier to loan approval (e.g., that her credit score was

low). Plaintiff further alleges that “someone else’s credentials were switched with mine and they

received the loan under my name and business name, which is Restore & Evolve, LLC.”

(Compl., ECF No. 1-1.)1

Plaintiff asserts a variety of claims including violations of the Clayton Act, Fair and

Accurate Credit Transaction Act, federal identity theft and bank fraud statutes, the Ohio

Administrative Code’s prohibitions on bait advertising and deceptive practices, and the Ohio

anti-swatting statute, as well as espionage, embezzlement, and disreputable conduct constituting

grounds for suspension from practice before the Office of the Comptroller of the Currency.

These claims are asserted against ten Defendants, including ECDI’s officers and employees and

the Secretary of the United States Department of Treasury.

Plaintiff’s Complaint does not allege a plausible claim for relief. Plaintiff appears to

allege both that ECDI reviewed someone else’s credentials, resulting in the denial of Plaintiff’s

loan application, and that someone else submitted Plaintiff’s credentials and was approved for a

loan in Plaintiff’s name. Both cannot be true. Moreover, Plaintiff’s Complaint contains no

plausible or non-conclusory allegations that might establish that ECDI engaged in

anticompetitive conduct under the Clayton Act, that Plaintiff suffered any injury as a result of

1 Plaintiff’s in forma pauperis application and Complaint, which were duly filed on January 11,

2023, were placed under seal upon filing due to Plaintiff’s inclusion of numerous instances of

personally identifiable information, such as her driver’s license, birth certificate, and social

security card.

any alleged fraudulent inducement to submit a loan application to ECDI, that her identification

documents were misused, that any espionage, embezzlement, or bank fraud occurred, that

anyone reported false information to law enforcement in violation of Ohio’s anti-swatting

statute, or that any of the Defendants practice before the Office of the Comptroller of the

Currency. All that Plaintiff has plausibly alleged is that her loan application was denied. Absent

more, Plaintiff has not sufficiently stated any claim on which relief can be granted. Accordingly,

the undersigned RECOMMENDS that Plaintiff’s Complaint be DISMISSED under

§ 1915(e)(2).

III. DISPOSITION

For the reasons set forth above, Plaintiff’s motion for leave to proceed in forma pauperis

under 28 U.S.C. § 1915(a) (ECF No. 1) is GRANTED. It is RECOMMENDED that the Court

DISMISS Plaintiff’s Complaint pursuant to § 1915(e)(2) for failure to state a claim on which

relief may be granted.

The Clerk is DIRECTED to file Plaintiff’s Complaint (ECF No. 1-1) on the public

docket and to file the Complaint’s Exhibits (ECF Nos. 1-2 and 1-3) under seal due to their

inclusion of Plaintiff’s personally identifiable information.

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 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).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE