Smith v. Kroger

Filing 6

Opinion & Order signed by Judge James S. Gwin on 7/11/17 granting plaintiff's motion to proceed in forma pauperis and dismissing this action under section 1915(e). The dismissal is without prejudice to any valid state law claim plaintiff may have under the facts alleged. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good faith. (Related Doc. 2 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

CHARMANE SMITH,
Plaintiff,
v.
KROGER,
Defendant.

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CASE NO. 1:17 CV 1247
JUDGE JAMES S. GWIN
OPINION & ORDER

On June 14, 2017, plaintiff pro se Charmane Smith filed this in forma pauperis action
against Kroger. Plaintiff’s brief pleading, entitled “Application for Injunction,” seeks damages
and the names of two Kroger employees who Smith alleges verbally assaulted her.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam), 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 basis
in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470 (6th
Cir. 2010).
A cause of action fails to state a claim upon which relief may be granted when it lacks
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An in forma pauperis 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. Chase Manhattan Mortg. Corp. v. Smith,
507 F.3d 910, 915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir.
1990); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).

“plausibility in the complaint.” Bell At. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The
plaintiff is not required to include detailed factual allegations, but must provide more than “an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (2009). A
pleading that offers legal conclusions or a simple recitation of the elements of a cause of action
will not meet this pleading standard. Id.
As a threshold matter, plaintiff has not filed a complaint, which is required to commence
a civil action in this court. Fed.R.Civ.P. 3. Further, she does not identify any particular federally
protected right defendant is claimed to have violated. Instead, she provides a brief, general
factual narrative.
Principles requiring generous construction of pro se pleadings are not without limits. See
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); 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, Inc., 859 F.2d 434, 437 (6th Cir.
1988). District courts are not required to conjure up questions never squarely presented to them
or to construct full blown claims from sentence fragments. Beaudett, 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. at 1278.
Plaintiff’s failure to identify a particular legal theory places an unfair burden on
defendant to speculate on the potential claims she may be raising and the defenses it might assert
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in response. Wells v. Brown, 891 F.2d at 594. Moreover, her pleading simply does not contain
allegations reasonably suggesting she might have a valid federal claim. See, Lillard v. Shelby
County Bd. of Educ,, 76 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). The dismissal is without prejudice to any valid state law claim
plaintiff may have under the facts alleged. 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.

Dated: July 11, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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