Cherricks v. Bank of America

Filing 7

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/28/11. (ntl)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LIZA DAWN CHERRICKS, Plaintiff, v. BANK OF AMERICA, Defendant. : Civ. No. 10-lOl8-LPS Liza Dawn Cherricks, New Castle, Delaware, Pro Se Plaintiff. MEMORANDUM OPINION March 28,2011 Wilmington, Delaware I j I. INTRODUCTION PlaintiffLiza Dawn Cherricks ("Cherricks") of New Castle, Delaware, filed this civil action on November 23,2010. (D.I.2) She appears pro se and has been granted leave to proceed in forma pauperis. (D.I.4) The Court proceeds to review and screen the Complaint pursuant to 28 U.S.C. 1915. 1 i II. BACKGROUND The allegations are difficult to discern. Cherricks refers to a non-existent statute and alleges discrimination by the United States, but does not indicate the type of discrimination. In addition, there is no claim for relief. In a separate filing she refers to "restoration and preservation for entire nation" and an "application for a reclamation for a ratification of the U.S. Constitution and create unity with all the nations - totally respecting the bible and being one nation under God/liberty [and] justice for all." (D.l. 5) III. STANDARD OF REVIEW This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U .S.C. 1915(e)(2) (in forma pauperis actions). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. See Phillips v. County ofAllegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Cherricks proceeds pro se, her pleading is liberally construed and her Complaint, "however inartfully pleaded, must be held 1 to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation marks omitted). An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. 1915(e)(2)(B)(i), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; see also Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989). The legal standard for dismissing a complaint for failure to state a claim pursuant to 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of28 U.S.C. 1915, the Court must grant Cherricks leave to amend her complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State Hasp., 293 F .3d 103, 114 (3d Cir. 2002). A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1949. When determining whether dismissal is appropriate, the Court conducts a two-part analysis. See Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009). First, the factual and legal elements of a claim are separated. See id. The Court must accept all of the 2 I Complaint's well-pleaded facts as true, but may disregard any legal conclusions. See id at 210 11. Second, the Court must determine whether the facts alleged in the Complaint are sufficient to show that Cherricks has a "plausible claim for relief." Id at 211. In other words, the Complaint must do more than allege Plaintiff's entitlement to relief; rather, it must "show" such an entitlement with its facts. Id A claim is facially plausible when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See Iqbal, 129 S.Ct. at 1949. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief ", Id. (quoting Twombly, 550 U.S. at 570). IV. DISCUSSION The Complaint consists of difficult-to-discern but fantastical claims that are clearly baseless and insufficient to withstand the Court's evaluation for frivolity under 1915(e)(2)(B)(i). See Denton v. Hernandez, 504 u.s. 25, 33 (1992). Accordingly, the Court will dismiss the Complaint as frivolous pursuant to 28 U.S.C. 1915(e)(2)(B). V. CONCLUSION For the above reasons, the Court will dismiss the Complaint as frivolous pursuant to 28 U.S.C. 1915(e)(2)(B). An appropriate Order follows. 3

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