INMAN v. FOOD EXPRESS USA

Filing 3

REPORT AND RECOMMENDED DECISION re 1 Complaint filed by FRANK INMAN. Objections to R&R due by 1/2/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRANK INMAN,
Plaintiff
v.
FOOD EXPRESS USA, et al.,
Defendants

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1:17-cv-00461-DBH

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND
RECOMMENDED DECISION AFTER SCREENING COMPLAINT
PURSUANT TO 28 U.S.C. § 1915(e)
In this action, Plaintiff Frank Inman, who at the time he filed the complaint was
detained at the Penobscot County Jail, alleges Defendant Food Express USA, of Rancho
Dominguez, California, misrepresented one of its products.
Plaintiff filed an account activity ledger and certificate of prisoner’s account, which
documents suggest that Plaintiff would qualify to proceed in forma pauperis. (ECF No. 2.)
Although Plaintiff has not filed an application to proceed in forma pauperis, the Court
construes Plaintiff’s filing to be a request for in forma pauperis status and grants Plaintiff
leave to proceed without prepayment of the filing fee.
In accordance with the in forma pauperis statute, a preliminary review of Plaintiff’s
complaint is appropriate. 28 U.S.C. § 1915(e)(2). Following a review of the complaint, I
recommend the Court dismiss the complaint.

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STANDARD OF REVIEW
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure
meaningful access to the federal courts for those persons unable to pay the costs of bringing
an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss
the case at any time if the court determines,” inter alia, that the action is “frivolous or
malicious” or “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B). “Dismissals [under § 1915] are often made sua sponte prior to the issuance
of process, so as to spare prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim,” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the

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defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
FACTUAL BACKGROUND
Plaintiff alleges that he purchased a bottle of Defendant’s cocoa butter lotion and
thereafter discovered that the product is not cocoa butter. (Complaint, ECF No. 1.) Plaintiff
evidently asserts that the advertising on the packaging is false or misleading. Plaintiff
alleges he would not have purchased the product had he known it was not as represented.
DISCUSSION
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013)
(quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). “It
is to be presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S.
at 377 (citation omitted). “A court is duty-bound to notice, and act upon, defects in its
subject matter jurisdiction sua sponte.” Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir.
2011). A review of Plaintiff’s complaint fails to reveal a basis upon which this Court could
exercise either federal question jurisdiction or diversity jurisdiction under 28 U.S.C. §§
1331 and 1332.
Pursuant to section 1331, federal district courts “have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. Plaintiff has not asserted a claim based on the United States Constitution,

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a federal statute, or a federal treaty.1 Plaintiff has thus failed to assert a claim within the
Court’s federal question jurisdiction.
Pursuant to section 1332, federal district courts also have original jurisdiction
“where the matter in controversy exceeds the sum or value of $75,000 … and is between
citizens of different States.” 28 U.S.C. § 1332(a)(1). Although Plaintiff’s citizenship is
apparently diverse from that of Defendant, even if Plaintiff’s complaint could be construed
to assert a state law claim, Plaintiff has not alleged a claim where the amount in controversy
exceeds $75,000. In fact, in his complaint, Plaintiff specifically asserts that he seeks a
monetary award of $10,000. Accordingly, Plaintiff has not alleged a claim within the
Court’s diversity jurisdiction.
In short, Plaintiff has not asserted a claim within the Court’s subject matter
jurisdiction. Dismissal of the complaint, therefore, is warranted.
CONCLUSION
Based on the foregoing analysis, pursuant to 28 U.S.C. § 1915(e)(2), I recommend
the Court dismiss Plaintiff’s complaint.
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
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Although the Lanham Act, a federal statute, prohibits false advertising, the Lanham Act does not provide
a cause of action to consumers, but rather to entities engaged in commerce for harm caused by a
competitor’s false advertisement. Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
1390 (2014) (holding “that to come within the zone of interests in a suit for false advertising under [15
U.S.C.] § 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales,” observing
that “[a] consumer … hoodwinked into purchasing a disappointing product … cannot invoke the protection
of the Lanham Act”).
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court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 18th day of December, 2017.

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