HERBERT v. UNISHIP BANKING
REPORT AND RECOMMENDED DECISION re 1 Complaint. Objections to R&R due by 11/27/2023. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KRISTINA E. HERBERT,
RECOMMENDED DECISION AFTER REVIEW
OF PLAINTIFF’S COMPLAINT
Plaintiff filed a complaint and a motion to proceed without prepayment of fees and
costs, which motion the Court granted. (Complaint, ECF No. 1; Motion, ECF No. 2; Order,
ECF No. 3.) In accordance with the statute governing matters in which a plaintiff proceeds
without the prepayment of fees, a preliminary review of Plaintiff’s complaint is
appropriate. 28 U.S.C. § 1915(e)(2).
Following a review of Plaintiff’s complaint, I recommend the Court dismiss the
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
pursuant to the statute, 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). 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).
A review of Plaintiff’s complaint fails to reveal sufficient facts to support an
actionable claim. Accordingly, dismissal of Plaintiff’s complaint is warranted.
Based on the foregoing analysis, after a review of Plaintiff’s complaint pursuant to
28 U.S.C. § 1915, I recommend the Court dismiss the matter.
On April 25, 2022, in Herbert v. Meghar, 1:21-cv-00346-LEW, the Court informed
Plaintiff that filing restrictions “may be in the offing” if she were to commence further
“groundless litigation.” (Order at 1, ECF No. 7) (quoting Cok v. Family Court of Rhode
Island, 985 F.2d 32, 35 (1st Cir.1993)). Given Plaintiff’s filing in this case, I recommend
the Court consider the imposition of filing restrictions on Plaintiff.
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
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 13th day of November, 2023.
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