Smith v. Dungey, et al.
Memorandum Opinion: Defendants' motions to dismiss are granted. Further, as there are no allegations indicating possible claims against defendants Colvin and Dungey, they are hereby dismissed from this action sua sponte. Based on the foregoing, this action is dismissed. (Related Doc. Nos. 8 , 10 ). Judge Sara Lioi on 7/12/2017. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CYNTHIA D. DUNGEY, et al,
CASE NO. 5:17cv890
JUDGE SARA LIOI
On April 26, 2017, pro se plaintiff Kimani Smith filed this action against the following
defendants, identified as “state employees:” Cynthia D. Dungey, Joy Colvin, Jennifer Beheam,
and Kelly McLaughlin. Defendants Beheam and Dungey filed motions to dismiss, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal of all claims alleged in
the complaint. Plaintiff failed to timely file any opposition to the motions.1 For the reasons stated
below, this action is dismissed.
The statement of claim portion of the complaint states in its entirety as follows:
i, Kimani Smith Claim:
all said wrongdoer(s) conspire to deceive and swindle I out of my property, by:
communicating threats, causing harm with the use of intimidation and
infringement on my 5th amendment right.
On May 10, 2017, defendant Dungey filed her motion to dismiss. (Doc. No. 8.) Defendant Beheam filed her Rule
12(b)(6) motion on May 19, 2017. (Doc. No. 10.) On July 10, 2017, well after the deadline for filing an opposition
brief, plaintiff filed a document entitled “FACTS.” (Doc. No. 12.) In this filing, he states that in 2014 he entered into
a contract with defendant Colvin but failed to receive any consideration. (Id. at 42.) Even if this document had been
timely filed, it would not provide a basis for this Court to conclude that it has jurisdiction over plaintiff’s alleged
i require compensation for the continual deception and fraud and swindles, upon
my property; which violates my fifth amendment right. Compensation due: fortymillion dollars
i; Kimani Smith; a man; verify/clarify said claims to be true under penalty and
A cause of action fails to state a claim upon which relief may be granted when it
lacks “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). 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.
While pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982), the district court may dismiss an action sua
sponte if the complaint is so “implausible, attenuated, unsubstantial, frivolous, devoid of
merit, or no longer open to discussion” as to deprive the Court of subject matter
jurisdiction. Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (citing Hagans v. Lavine,
415 U.S. 528, 536–37, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974)). Plaintiff’s brief,
generalized statement in his complaint does not contain any reasonable suggestion of a
claim over which this Court might have jurisdiction.
Accordingly, defendants’ motions to dismiss are granted. Further, as there are no
allegations indicating possible claims against defendants Colvin and Dungey, they are
hereby dismissed from this action sua sponte.
Based on the foregoing, this action is dismissed.
IT IS SO ORDERED.
Dated: July 12, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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