Ruppersberger v. M&T Bank et al

Filing 6

MEMORANDUM ORDER - denying as moot re 1 MOTION for Emergency Hearing filed by Elizabeth Ruppersberger, ORDER DISMISSING CASE as frivolous (copy to pltf.) (CASE CLOSED). Signed by Judge Sue L. Robinson on 5/3/13. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

ELIZABETH RUPPERSBERGER,
Plaintiff,

v.
M&T BANK, et aI.,
Defendants.

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) Civ. No. 13-691-SLR
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MEMORANDUM ORDER
At Wilmington this'Y'day of May, 2013, having screened the case pursuant to 28
U.S.C. § 1915(e)(2);
IT IS ORDERED that the: (1) the motion for an emergency hearing (0.1. 1) is
denied as moot; and (2) the complaint is dismissed as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i), for the reasons that follow:
1. Background. Plaintiff, who resides in Wilmington, Delaware, proceeds pro
se and has been granted leave to proceed in forma pauperis. She alleges
discrimination of an undetermined nature.
2. Standard of review. This court must dismiss, at the earliest practicable time,
certain in forma pauperis 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.

Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d CiL 2008); Erickson v. Pardus,
551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, her pleading is liberally

construed and her complaint, "however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at
94 (citations omitted).
3. 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)(8)(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; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g.,
Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995) (holding frivolous a suit

alleging that prison officials took an inmate's pen and refused to give it back).
4. The legal standard for dismissing a complaint for failure to state a claim
pursuant to § 1915(e)(2)(8)(ii) is identical to the legal standard used when ruling on
Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)
(applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim under

§ 1915(e)(2)(8)). However, before dismissing a complaint or claims for failure to state a
claim upon which relief may be granted pursuant to the screening provisions of 28

u.s.c. § 1915, the court must grant plaintiff leave to amend her complaint unless
amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293
F.3d 103, 114 (3d Cir. 2002).
5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At!. Corp. v. Twombly,
550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to

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"[t]hreadbare recitals of the elements of a cause of action supported by mere
conclusory statements." Id. at 1949. When determining whether dismissal is
appropriate, the court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578
F.3d 203,210 (3d Cir. 2009). First, the factual and legal elements of a claim are
separated. Id. The court must accept all of the complaint's well-pleaded facts as true,
but may disregard any legal conclusions. Id. at 210-11. Second, the court must
determine whether the facts alleged in the complaint are sufficient to show that plaintiff
has a "plausible claim for relief."1 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. "[W]here the well-pleaded facts do not permit the court to
infer more than a mere possibility of misconduct, the complaint has alleged - but it has
not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R.
Civ. P. 8(a)(2».
6. Discussion. Plaintiff alleges that no agency will help her. She states that
she lives in an unsafe apartment, cannot make telephone calis, has no television or
radio, the windows do not open, the shower smells, the heat and hot water do not
always work, she was not provided a key to the mailbox, her property was stolen from
the apartment, defendant M& T Bank will not give her checks for a cash advance loan,
the local police will not allow her to file a report, defendant Senator Carper's office

1A 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. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). 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.

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would not help her find the food stamp office, and her social security card was stolen
placing her identity in jeopardy. Plaintiff needs to relocate but will have no money until
May 3,2013 when she receives her disability check. She also requests an emergency
hearing. (D.1. 1)
7. Plaintiff's complaint does not show that she is entitled to relief. The complaint
does not suggest any claims under federal law and the parties are not diverse. Even
given the latitude accorded pro se pleadings, the filing is so devoid of any possible merit
as to be frivolous. Therefore, the complaint will be dismissed as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i). Perhaps plaintiff might seek assistance from the:
(1) Delaware Health and Social Services Division of Social Services, 1920 Maryland
Avenue, Wilmington, Delaware; (2) First State Community Action Agency, 19 Lambson
Lane, Suite 10SA, New Castle, Delaware; (3) Sunday Breakfast Mission, 110 N. Poplar
Street, Wilmington, Delaware; or (4) West End Neighborhood House, 710 North Lincoln
Street, Wilmington, Delaware.
8. Conclusion. For the above reasons, the motion for an emergency hearing
(D.1. 1) is denied as moot and the complaint is dismissed as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). Amendment of the complaint is futile. The clerk of court is
directed to close the case.

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