Buess et al v. Kasick

Filing 7

Memorandum Opinion and Order: This action is dismissed. 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. Judge Sara Lioi on 1/7/2014. (S,He)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION DAVID LEE BUESS, PLAINTIFF, vs. JOHN KASICK, Ohio Governor, DEFENDANT. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:13cv2576 JUDGE SARA LIOI MEMORANDUM OPINION AND ORDER On November 20, 2013, pro se plaintiff David Lee Buess filed this in forma pauperis “habeas corpus” action against Ohio Governor John Kasich.1 The first four pages of the pleading consist of a list of conspirators. The balance contains “charges” and a large collection of fragmented, bare legal assertions without intelligible supporting factual allegations. Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam), Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (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 basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 324, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Lawler v. Marshall, 898 F.2d 1196, 1198-99 (6th Cir. 1990); see, generally, Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). 1 In the complaint, Governor Kasich’s name is misspelled as “Kasick.” Additionally, this complaint purports to be filed on behalf of two other plaintiffs, Winona Mae Palmiotti and Winona Rosa Piscitelli, but neither of these individuals signed the pleading. 1 A cause of action fails to state a claim upon which relief may be granted when it lack “plausibility in the complaint[.]” Bell At. Corp. v. Twombly, 550 U.S. 544, 564, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quote omitted). 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 pleading are true. Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations, but the complaint must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. 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. Principles requiring generous construction of pro se pleadings are not without limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (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. 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 construing the pleading filed in this case liberally in a light most favorable 2 to plaintiff, Brand v. Motley, 526 F.3d 921, 924 (6th Cir. 2008), it does not contain allegations reasonably suggesting he might have a valid federal claim, in habeas corpus or otherwise. 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). In light of the foregoing, this action is dismissed. 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. Dated: January 7, 2014 HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE 3

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