Vasquez v. Spitzley
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 6 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-1235
HON. JANET T. NEFF
OPINION AND ORDER
Plaintiff, proceeding pro se, initiated this case against Defendant, alleging trespass. The
matter was referred to the Magistrate Judge, who issued a Report and Recommendation (R&R, Dkt
6) on October 21, 2016, recommending that this Court dismiss Plaintiff’s complaint for failure to
state a claim upon which relief may be granted, pursuant to FED. R. CIV. P. 12(b)(6) (id. at
PageID.19). Pending before the Court are Plaintiff’s objections to the Report and Recommendation
(Objs., Dkt 7). In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has
performed de novo consideration of those portions of the Report and Recommendation to which
objections have been made. The Court denies the objections and issues this Opinion and Order.
In his objections, Plaintiff merely asserts that he will produce additional paperwork to allege
facts sufficient to show trespass if his case is allowed to proceed (Objs., Dkt 7 at PageID.24–25).
Such an assertion does not warrant rejection of the Magistrate Judge’s Report and Recommendation.
As the Magistrate Judge explained, a complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face’” (R&R, Dkt 6 at PageID.19, citing
Ashcroft v. Iqbal 556 U.S. 662, 678 (2009)). Plaintiff’s complaint is “devoid of facts that would
create a federal claim” (id. at PageID.21). Plaintiff’s assurance that he will provide facts sometime
in the future does not cure the deficient complaint. And to the extent Plaintiff wishes the Court to
consider factual allegations made in Plaintiff’s other pending cases, such is not appropriate because
when evaluating a complaint under 12(b)(6), the Court may consider the complaint, exhibits, public
records, and items appearing in “the record of the case.” See Bassett v. Nat’l Collegiate Ass’n, 528
F.3d 426, 430 (6th Cir. 2008) (emphasis added). Plaintiff’s objection is without merit.
Accordingly, the Court will approve and adopt the Report and Recommendation as its
opinion, and a Judgment will be entered consistent with this Opinion and Order. See FED. R. CIV.
P. 58. For the above reasons and because this action was filed in forma pauperis, this Court also
certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Judgment would not be taken in
good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).
THEREFORE, IT IS ORDERED that the Objections (Dkt 7) are DENIED and the Report
and Recommendation (Dkt 6) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Complaint (Dkt 1) is DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B) for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of the decision would not be taken in good faith.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Date: January 5, 2017
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