Whyms v. Select Portfolio Servicing et al
Filing
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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-13250
HON. BERNARD A. FRIEDMAN
SELECT PORTFOLIO SERVICING, 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).
The present case is frivolous and fails to state a claim because it concerns an alleged
wrongful foreclosure plaintiff raised in two previous cases, Whyms v. HSBC Bank USA, 14-CV13384 (E.D. Mich.), and Whyms v. HSBC Bank USA, et al., 15-CV-11131 (E.D. Mich.), both of
which this Court dismissed. Those dismissals are res judicata as to the instant case, which raises
claims plaintiff either did or could have raised in the prior cases. Further, as noted in the orders of
dismissal in those cases, the Court has no power to act because the relief plaintiff seeks would
require the Court to invalidate a state court judgment. Under the Rooker-Feldman doctrine, a federal
court may not do so. Accordingly,
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.
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IT IS FURTHER ORDERED that the complaint is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
Dated: September 28, 2015
Detroit, Michigan
S/ Bernard A. Friedman________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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