Kraft v. Lewis et al

Filing 3

Memorandum Opinion and Order granting (re 2 ) Motion to proceed in forma pauperis and dismissing this action under Section 1915(e). Further, the court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision could not be taken in good faith. Signed by Judge Solomon Oliver, Jr on 11/20/2008. (D,M)

Kraft v. Lewis et al

Doc. 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

BRETT ALLEN KRAFT, Plaintiff, v. KENNETH D. LEWIS, et al., Defendants.

) ) ) ) ) ) ) ) )

Case No.: 1:08 CV 2298 JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION AND ORDER

On September 26, 2008, plaintiff pro se Brett Allen Kraft filed this in forma pauperis action against Kenneth D. Lewis and the Bank of America Corporation. The complaint alleges plaintiff

served defendants with a "Letter of Origin and Notice (Exhibit A) and Bonded Promissory Note (Exhibit A2)," a "Notice of Fault with an Opportunity to Cure" and later, a "Notice of Default." For the

Defendants apparently did not respond to these notices.

reasons stated below, this action is dismissed pursuant to 28 U.S.C. § 1915(e). Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable

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basis in law or fact.1

Neitzke v. Williams, 490 U.S. 319 (1989);

Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). Principles requiring generous construction of pro se pleadings are not without limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). A complaint must contain either

direct or inferential allegations respecting all the material elements of some viable legal theory to satisfy federal notice pleading requirements. See Schied v. Fanny Farmer Candy Shops, District courts are not

Inc., 859 F.2d 434, 437 (6th Cir. 1988).

required to conjure up questions never squarely presented to them. Beaudette, 775 F.2d at 1278. To do so would "require ...[the

courts] to explore exhaustively all potential claims of a pro se plaintiff, ... [and] would...transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Id.

Even liberally construed, the complaint does not contain allegations reasonably suggesting plaintiff might have a valid claim for relief. 1 See, Lillard v. Shelby County Bd. of Educ,, 76

A claim may be dismissed sua sponte, without prior notice to the plaintiff and without service of process on the defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of the reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177, 1179 (6th Cir. 1985). 2

F.3d 716 (6th Cir. 1996)(court not required to accept summary allegations or unwarranted legal conclusions in determining whether complaint states a claim for relief). Accordingly, the request to proceed in forma pauperis is granted and this action is dismissed under Section 1915(e). Further, the court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED.

/S/ SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE

November 20, 2008

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