Whyms v. HSBC Bank USA, National Association et al

Filing 4

OPINION and ORDER granting 2 Application to Proceed Without Prepaying Fees or Costs and dismissing 1 Complaint. Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALEXANDER WHYMS,
Plaintiff,
vs.

Civil Action No. 15-CV-11131
HON. BERNARD A. FRIEDMAN

HSBC BANK, USA, et al.,
Defendants.
_______________________/
OPINION AND ORDER GRANTING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS AND DISMISSING THE COMPLAINT
This matter is presently before the Court on plaintiff’s application to proceed in forma
pauperis. For the following reasons, the Court shall (1) grant the application and therefore allow the
complaint to be filed without prepayment of the filing fee, and (2) dismiss the complaint because
it is frivolous and/or fails to state a claim upon which relief may be granted.
Pursuant to 28 U.S.C. § 1915(a)(1), the Court may permit a person to commence a
lawsuit without prepaying the filing fee, provided the person submits an affidavit demonstrating that
he/she “is unable to pay such fees or give security therefor.” In the present case, plaintiff’s
application to proceed in forma pauperis makes the required showing of indigence. The Court shall
therefore grant the application and permit the complaint to be filed without requiring plaintiff to
prepay the filing fee.
Pro se complaints are held to “less stringent standards” than those drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, the Court is required by statute to dismiss
an in forma pauperis complaint if it
(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). A complaint is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other words, a complaint is frivolous if
“based on an indisputably meritless legal theory” or “clearly baseless” facts or “a legal interest
which clearly does not exist” or “fantastic or delusional scenarios.” Id. at 327-28. To avoid
dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Center for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011) (citations and internal quotations omitted). Further,
the Court is required to dismiss the complaint, whether or not plaintiff is proceeding in forma
pauperis, if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
In the present case, the complaint is clearly frivolous. Plaintiff filed a nearly identical
“wrongful foreclosure” action in 2014, see Whyms v. HSBC Bank USA, Civil Action No. 14-13384
(E.D. Mich.), which this Court dismissed on April 10, 2015. Plaintiff commenced the instant action
on March 26, 2015, against the same defendant and one other, Creekside Development, LLC. The
judgment entered in the earlier action is res judicata as to the instant action, as all claims raised in
the instant action either were or could have been raised in the earlier action. Further, as the Court
noted in its April 10, 2015, opinion and order dismissing the complaint in the earlier action,
plaintiff’s claims are barred by the Rooker-Feldman doctrine because they would require the Court
to invalidate a state court judgment of foreclosure on the property at issue. Even if plaintiff could
overcome these barriers, the Court has no jurisdiction to entertain his claim against Creekside
Development, LLC, as this appears at best to be a breach of contract claim with an amount in
controversy of just $8,300. See Compl. ¶¶ 18, 21. Accordingly,
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IT IS ORDERED that plaintiff’s application for leave to proceed in forma pauperis
is granted. The complaint is filed and the filing fee need not be prepaid.

IT IS FURTHER ORDERED that the complaint is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B).

Dated: April 24, 2015
Detroit, Michigan

_s/ Bernard A. Friedman_______
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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