JOHN v. RESIDENCE HOTEL

Filing 3

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND RECOMMENDING DISMISSAL OF THE CASE IN ITS ENTIRETY re 1 Complaint, filed by LILLIAN ABALO JOHN Objections to R&R due by 6/27/2016 By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

LILLIAN ABALO JOHN,
Plaintiff
v.
RESIDENCE HOTEL,
Defendant

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No. 2:16-cv-199-GZS

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND
RECOMMENDING DISMISSAL OF THE CASE IN ITS ENTIRETY
In this action, the plaintiff apparently contends that she is entitled to part-time employment
by the defendant. I grant the plaintiff’s request for leave to proceed in forma pauperis but
recommend that the court dismiss the action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
In forma pauperis status is available under 28 U.S.C. § 1915(a)(1). However, section
1915(e)(2)(B) also provides, in relevant part:
[T]he court shall dismiss the case at any time if the court determines that
(B) the action or appeal -(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under 28 U.S.C. § 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.” Nietzke v. Williams, 490 U.S. 319, 324 (1989); see also Mallard v. U.S. Dist. Ct. S.
D. Iowa, 490 U.S. 296, 307-08 (1989) (“[28 U.S.C. § 1915], for example, authorizes courts to
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dismiss a ‘frivolous or malicious’ action, but there is little doubt they would have power to do so
even in the absence of this statutory provision.”)
The plaintiff’s application for leave to proceed in forma pauperis, without paying fees or
costs, is incomplete. Signed under penalty of perjury, it indicates that she is possibly receiving an
unspecified amount of unemployment benefits, may be receiving an unspecified amount of rent,
interest, or dividends (both the “yes” and the “no” columns are checked in this category on the
form), and has $20 in her checking account. Application to Proceed in District Court Without
Prepaying Fees or Costs (ECF No. 2). Giving the plaintiff the benefit of the doubt, it appears likely
that she would qualify for in forma pauperis status, and I will grant her request.
As noted above, the statute that provides for waiver of the filing fee also requires the court
to determine whether the plaintiff’s case may proceed. In other words, the plaintiff’s complaint
must be dismissed if the court finds it to be frivolous or malicious, seeks monetary relief from a
defendant who is immune from such relief, or fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915(e)(2)(B). In this regard, a pro se plaintiff’s complaint must be read
liberally. Donovan v. Maine, 276 F.3d 87, 94 (1st Cir. 2002).
So read, the plaintiff’s complaint alleges that the Residence Hotel, after sending her home
on the basis that they did not have work for her, called her to go in and sign for “pto hours,” after
which they refused to give her the “pto 26 hours” to which she is entitled. [Complaint] (ECF No.
1). No basis for federal court jurisdiction is alleged, and none is apparent. Neither diversity
jurisdiction, 28 U.S.C. § 1332, nor federal question jurisdiction, 28 U.S.C. § 1331, is pleaded. The
claim as stated appears to be appropriate for determination, if at all, in Maine state court rather
than federal court.

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For the foregoing reasons, the plaintiff’s application to proceed in forma pauperis is
GRANTED, and I recommend that the complaint be DISMISSED under 28 U.S.C.
§ 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.
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 court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
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.
Dated this 10th day of June, 2016.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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