Barath v. Bemer
Memorandum of Opinion and Order: Accordingly, the defendant's motion to dismiss the plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. No. 7 ) is granted, the plaintiff's "motion" in response (Doc. No. 8 ) is denied, and this action is dismissed. The plaintiff's motion for appointment of counsel (Doc. No. 4 ) is also denied. The Court further certifies, pursuant to 28 U.S.C. § 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 9/27/17. (LC,S)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Andrew D. Bemer,
CASE NO. 1: 17 CV 776
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Pro se Plaintiff Mary Barath has filed this in forma pauperis civil action against
Defendant Andrew D. Bemer, the Law Director of the City of Rocky River (hereinafter, “Law
Director” or defendant). Her complaint does not allege any identifiable legal claims or state any
specific claim for relief. In her complaint, she alleges only that:
for the last 10 years I have been discriminated, violated, and victimized by this
Law Director. I am including all the supporting documents, including abuse - I
have been asked to move!
I am unable to receive the same services as other Senior Citizens. I live in fear. I
was brutalized by the City Prosecutor when I had a minor accident. He would not
allow me to leave until 5:00 P.M. in the afternoon, even though my automobile
insurance was in order. This Mike O’Shea was shouting at me at the top of his
(Doc. No. 1.)
The “supporting documents” the plaintiff attaches to her complaint, however, are
disorganized and unclear. On their face, they appear to suggest the plaintiff has made numerous
complaints over the years, of which none were found to have merit, about perceived harassment
and discrimination by the defendant and others in Rocky River. It appears the plaintiff has
complained, among other things, that she was mistreated and harassed by police, the prosecutor,
and others in connection with a traffic case that was brought against her; that the City
discriminated against her by failing to provide her senior transportation to doctors’ appointments
and other services; and that the defendant and others harassed her about selling her home and
discriminated against her by allowing a fence to be built by her next-door neighbor.
The defendant has filed a motion to dismiss the plaintiff’s complaint pursuant to Federal
Rules of Civil Procedure 12(b)(6), contending the complaint must be dismissed because it
consists of “mere conclusions, labels, and speculative allegations without a basis to identify a
cause of action and entitlement to relief.” (Doc. No. 7 at 4.) In response, the plaintiff has filed a
“motion to deny dismissal,” simply stating that she opposes the dismissal of her action and
would like her case to go forward. (Doc. No. 8.)
Standard of Review and Analysis
A complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if it fails to state claim
on which relief may be granted. To survive a Rule 12(b)(6) dismissal, a complaint “must present
‘enough facts to state claim to relief that is plausible on its face’” when its factual allegations are
presumed true and all reasonable inferences are drawn in the non-moving party’s favor. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th
Cir. 2008), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). That is, the plaintiff
must set forth allegations sufficient to “raise a right to relief [against the defendant] above the
speculative level.” Twombly, 550 U.S. at 555. Further, although pleadings and documents filed
by pro se litigants are “liberally construed” and held to a less stringent standards than formal
pleadings drafted by lawyers, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se plaintiffs must
still meet basic pleading requirements and courts are not required to conjure allegations on their
behalf. See Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001).
The plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is granted. Upon
review, however, the Court agrees with the defendant that the plaintiff’s complaint fails to allege
any plausible federal claim and must be dismissed pursuant to Rule 12(b)(6). Although the
plaintiff may genuinely believe she has been discriminated against or harassed by the defendant
in some way, her complaint – and the documents she submits with it – simply fail to support
such a conclusion. Even liberally construed, the plaintiff’s complaint and the materials she has
submitted with it do not support a reasonable inference that the Law Director “discriminated”
against, “violated,” or “victimized” her in any way violative of a federal law.
Accordingly, the defendant’s motion to dismiss the plaintiff’s complaint pursuant to Fed.
R. Civ. P. 12(b)(6) (Doc. No. 7) is granted, the plaintiff’s “motion” in response (Doc. No. 8) is
denied, and this action is dismissed. The plaintiff’s motion for appointment of counsel (Doc. No.
4) is also denied.
The Court further certifies, pursuant to 28 U.S.C. § 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/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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