Maney v. Herzfeld, Suetholz, Gastel, Leniski and Wall, PLLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DEBORAH MANEY, )

)

Plaintiff, )

) No. 3:24-cv-01164

v. )

) Judge Trauger

HERZFELD, SUETHOLZ, GASTEL, ) Magistrate Judge Holmes

LENISKI AND WALL, PLCC, )

)

Defendant.

MEMORANDUM OPINION AND ORDER

Pro se Plaintiff Deborah Maney, a resident of Nashville, Tennessee, filed this complaint

against Herzfeld, Suetholz, Gastel, Leniski, and Wall, PLLC, alleging claims pursuant to 42

U.S.C. § 1983. (Doc. No. 1).

I. FILING FEE

Plaintiff submitted an Application for Leave to Proceed In Forma Pauperis (“IFP

Application”). (Doc. No. 2). According to Plaintiff’s IFP Application, her monthly income totals

$923 from Supplemental Social Security payments, she has no assets of any kind, her monthly

expenses total $650, and she does not expect any major changes to her monthly income or

expenses in the next 12 months (Id.) Plaintiff did not provide a residential address and appears to

be unhoused. Because her IFP Application reflects that she lacks sufficient financial resources to

pay the full filing fee without undue hardship, the IFP Application (Doc. No. 2) is GRANTED.

The Clerk therefore is DIRECTED to file the complaint in forma pauperis. 28 U.S.C. § 1915(a).

II. INITIAL SCREENING STANDARD

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 requires

sua sponte dismissal of an action upon certain determinations. 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court must review her complaint

pursuant to 28 U.S.C. § 1915(e). Benson v. O’Brian, 179 F.3d 1014, 1016 (6th Cir. 1999). Under

§ 1915(e), the Court is required to screen in forma pauperis complaints and dismiss any

complaint, or any portion thereof, if the action is frivolous or malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2); see also Hill v. Lappin, 630 F. 3d 468, 470-71 (6th Cir.

2010).

Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain: (1) a

short and plain statement of the grounds for the court's jurisdiction, (2) a short and plain

statement of the claim showing that the plaintiff is entitled to relief, and (3) a demand for the

relief sought. Fed. R. Civ. P. 8(a). Although allegations in a pro se complaint are held to “less

stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519,

520 (1972), “liberal construction . . . has limits.” Erwin v. Edwards, 22 F. App’x 579, 580 (6th

Cir. 2001) (citing Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985). A pro se complaint must

still “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Barnett v. Luttrell, 414 F. App’x 784, 786 (6th Cir. 2011). District courts “have no

obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231

(2004). Nor are they “required to create” a pro se litigant’s claim for him or her. Payne v.

Secretary of Treasury, 73 F. App’x 836, 837 (6th Cir. 2003). And pro se litigants are not exempt

from the requirements of the Federal Rules of Civil Procedure. Brown v. Matauszak, 415 F.

App’x 608, 613 (6th Cir. 2011).

III. ALLEGED FACTS

The complaint alleges that the law firm of Herzfeld, Suetholz, Gastel, Leniski, and Wall

discriminated against Plaintiff. In describing her injuries, Plaintiff lists “power of attorney,

discrimination, civil rights, human rights, lives, Constitution.” (Doc. No. 1 at PageID# 5).1 The

complaint does not explain who discriminated against Plaintiff or what actions were taken. For

relief, the complaint seeks “questioning, explanations, answers, order of protections, and

[undecipherable].” (Id.)

IV. SCREENING OF THE IN FORMA PAUPERIS COMPLAINT

After conducting the initial screening pursuant to 28 U.S.C. § 1915(e)(2), the Court finds

that Plaintiff’s complaint does not satisfy Federal Rule of Civil Procedure Rule 8, fails to state a

claim upon which relief can be granted, and cannot survive screening under Section 1915(e)(2).

Plaintiff brings her complaint under 42 U.S.C. § 1983. Title 42 U.S.C. § 1983 creates a

cause of action against any person who, acting under color of state law, abridges “rights,

privileges, or immunities secured by the Constitution and laws . . . .” To state a claim under

Section 1983, a plaintiff must allege and show two elements: (1) that he was deprived of a right

secured by the Constitution or laws of the United States; and (2) that the deprivation was caused

by a person acting under color of state law. Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549

(6th Cir. 2009) (quoting Sigley v. City of Panama Heights, 437 F.3d 527, 533 (6th Cir. 2006));

42 U.S.C. § 1983.

1 Plaintiff’s handwritten complaint is, for the most part, illegible. The Court has made its best

attempt to fairly evaluate Plaintiff’s allegations.

The only named Defendant to the complaint is a law firm. The law firm is a professional

limited liability company. The complaint does not allege that the law firm is a state actor subject

to suit under Section 1983. This failure to identify a defendant acting under color of state law is a

failure of the required “basic pleading essential[s].” See Sango R. Ault, No. 1:14-CV-345, 2014

WL 1744726, at *3 (W.D. Mich. Apr. 30, 2014)

Even if Plaintiff had named a state actor as a defendant, the scant allegations set forth in

the complaint do not satisfy Federal Rule of Civil Procedure Rule 8. See Bell Atlantic v.

Twombly, 550 U.S. 544, 545 (2007) (“It is a basic pleading essential that a plaintiff attribute

factual allegations to particular defendants.”).

V. CONCLUSION

As explained above, Plaintiff’s in forma pauperis complaint is subject to dismissal under

28 U.S.C. 1915(e) because she has not named a defendant who can be sued under Section 1983.

Further, the complaint does not satisfy the pleading requirements of Federal Rule of Civil

Procedure 8. Accordingly, this action is hereby DISMISSED WITH PREJUDICE.

Because an appeal would not be taken in good faith, Plaintiff is not certified to pursue an

appeal from this judgment in forma pauperis. 28 U.S.C. § 1915(a)(3).

This is the final Order denying all relief in this case. The Clerk SHALL enter judgment.

Fed. R. Civ. P. 58(b).

It is so ORDERED. Uy

Aleta A. Trauger

United States District Judge