Holmes v. Evan et al

Filing 5

MEMORANDUM OPINION AND ORDER by Judge David J. Hale granting 3 Motion for Leave to Proceed in forma pauperis but dismissing the action for reasons set forth therein. cc: Plaintiff, pro se (RR) Modified on 2/29/2016 - modified title/doc type (RR).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARILYN HOLMES,

Plaintiff,

v.

Civil Action No. 3:16-cv-00087-DJH

ELMER EVAN et al.,

Defendants.
*****
MEMORANDUM OPINION AND ORDER

Plaintiff Marilyn Holmes filed this instant pro se action. In so doing, she also filed an
application to proceed without prepayment of fees (DN 3) which is GRANTED. However, the
Court will dismiss the action for lack of subject-matter jurisdiction under Rule 12(b)(1) and for
failure to meet the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.
Plaintiff filed her complaint against four Defendants – “Elmer Evan, Jill P. Anderson,
Willie (Steve Anderson), and AThomas P. Evans.” On the complaint form, she states that the
basis for jurisdiction is a federal question because “not report health condition prior to sex
physical scare and assult on bodies from his family; and friend; and others.” Under the “amount
in controversy,” she states “a wedding gift from father damage . . . of self image and a death
disease.” Plaintiff’s “Statement of Claim” reads as follows:
1.) The refused of be told medical condition. About health when
hiv+ is present in his reports.
2.) A life condition pass from poisoning which he cause infection,
blood level to drop. Often infusion.
3.) Tumor or warts, and smell on odd days.
4.) Smell inside my clothes, panties, etc…
5.) Poisoning of smoking, also drinks, lasking cigarettes he has
provide.
6.) Hair, face perment damage to skin, teeth.
In the “Relief” section of the complaint, Plaintiff states as follows:

½ of anything of a marriage bring in. 45 million property in state,
as well out of state of KY 3 million. The lost of family 75,000.
Thousand or more. My health, hair, skin, teeth. Billion, + a,p.
(Period).
“[A] district court may, at any time, sua sponte dismiss a complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the
allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of
merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). The
instant complaint meets this standard.
In addition, Rule 8(a) 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,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
Fed. R. Civ. P. 8(a). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
In the instant case, Plaintiff’s complaint fails to meet the requirements of Rule 8. It fails
to provide material facts in support of any viable legal theory, especially one under federal law.
The complaint does not contain sufficient factual matter that, if accepted as true, states “a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. at 570). For this reason, it also fails to place Defendants on notice as to
any claim(s) against them. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)
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(indicating that the short and plain statement of a claim must “‘give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests’”) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957), abrogated on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S.
544)).
Although this Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519 (1972), the
duty “does not require us to conjure up unpled allegations.” McDonald v. Hall, 610 F.2d 16, 19
(1st Cir. 1979). Nor is the Court required to create a claim for Plaintiff. Clark v. Nat’l Travelers
Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To do so would require the “courts to explore
exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district
court from its legitimate advisory role to the improper role of an advocate seeking out the
strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).
For these reasons, the Court will dismiss this action by separate Order.
Date:

February 26, 2016

David J. Hale, Judge
United States District Court

cc: Plaintiff, pro se
4415.011

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