Johnson v. Sneed

Filing 3

ORDER Granting Plaintiff's Application to Proceed In Forma Pauperis 2 and Dismissing the Complaint 1 . Signed by District Judge Arthur J Tarnow. (CGre)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KHALIL JOHNSON, Plaintiff, v. LANCE SNEED, a/k/a CURTIS JACKSON, a/k/a SEAN J. COMBS, Defendant. / ORDER GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS [2], and DISMISSING THE COMPLAINT [1] On November 2, 2010, Khalil Johnson ("Plaintiff") filed his pro se Complaint [1] in this case, along with an Application to Proceed in forma pauperis [2]. Those documents are now before the Court. A. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS 28 U.S.C. § 1915(a) provides that "any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets." If such a motion to proceed in forma pauperis is accompanied by a facially sufficient affidavit, the court should allow the complaint to be filed. See Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990). Only after the complaint is filed should it be tested to determine whether it is frivolous or fails to state a claim. See id. Here, the Court is convinced that Plaintiff's financial affidavit "contain[s] allegations of poverty sufficient to allow [Plaintiff] to proceed without prepayment of costs." See id. at 262. Therefore, Plaintiff's Application to Proceed in forma pauperis [3] is GRANTED, and the Clerk is directed to file the Complaint. B. PLAINTIFF'S CLAIM FOR RELIEF Civil Case No. 09-14883 DISTRICT JUDGE ARTHUR J. TARNOW MAGISTRATE JUDGE DONALD A. SCHEER

Once a complaint is filed in forma pauperis under 28 U.S.C. § 1915(a), it is tested under § 1915(e). Under 28 U.S.C. § 1915(e)(2)(B), a court "shall dismiss" a case at any time if the court finds that the case is: "(i) 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." Here, Plaintiff invokes federal jurisdiction pursuant to 28 U.S.C. § 1338, which confers upon the federal district courts original jurisdiction over civil actions relating to patents, copyrights and trademarks. The body of the Complaint [1] reads, in its entirety, "[t]he defendant owes the plaintiff $2,400,000.00 for money that was received from Warner Books, Inc., on September 10, 2009 to be paid by the defendant to the Plaintiff." See Compl. at 1. The Court's determination of failure to state a claim under § 1915 is the same as its determination under FED. R. CIV. P. 12(b)(6). See 1 MOORE'S FED. PRACTICE § 4.41[3]. That is, a complaint fails to state a claim where it lacks "either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." See Schied v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). Here, because the Complaint [1] is completely devoid of any factual allegations from which a cause of action might be inferred, the Court must conclude that the Plaintiff has "fail[ed] to state a claim on which relief may be granted." See 28 U.S.C. § 1915(e)(2)(B). The case is therefore subject to mandatory dismissal. See id. Therefore, the Court being fully advised in the premises, IT IS ORDERED that the Complaint [1] is hereby DISMISSED. The case is CLOSED. SO ORDERED.

S/ARTHUR J. TARNOW Arthur J. Tarnow Senior United States District Judge Dated: August 23, 2010 -2-

I hereby certify that a copy of the foregoing document was served upon counsel of record and Khalil Johnson #238491, Baraga Maximum Correctional Facility, 13924 Wadaga Road, Baraga, MI 49908 on August 23, 2010, by electronic and/or ordinary mail. S/LISA M. WARE Case Manager

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