Roum v. Staff Mark

Filing 3

ORDER and REPORT AND RECOMMENDATIONS re 2 Complaint: Plaintiff's request to proceed 1 in forma pauperis is GRANTED. The Magistrate Judge RECOMMENDS that the Court DISMISS Plaintiff's Complaint. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/25/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TINA ROUM,
Plaintiff,
Civil Action 2:13-cv-268
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

STAFF MARK,
Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Tina Roum, an Ohio resident who is proceeding without the assistance of
counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) Plaintiff’s
request to proceed in forma pauperis is GRANTED. All judicial officers who render services in
this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This matter is also
before the Court for the initial screen of Plaintiff’s Complaint as required by 28 U.S.C. §
1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or
any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2). Having performed the initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so “Congress recognized that ‘a litigant whose filing fees and court costs are assumed
by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, Section 1915(e) requires sua
sponte dismissal of an action upon a court’s determination that the action is frivolous or
malicious, or upon determination that the action fails to state a claim upon which relief may be
granted.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

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Formerly 28 U.S.C. § 1915(d).
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Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ .
. . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than
formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).

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II.
The entirety of Plaintiff’s Complaint against Defendant Staff Mark reads as follows:
In July 2012[,] a Staff Mark employee discriminated [against] me when I
tried to find a job. [S]he told me “you can’t read [E]nglish so you can’t go there and
stand around to do nothing!”
I would like Staff Mark Company to apologize and pay me that day I didn’t
have a job. Also find me a full time job.
(Compl. 3–4, ECF No. 1-2.)
Plaintiff’s Complaint provides insufficient factual content or context from which the
Court could reasonably infer that Defendant violated Plaintiff’s rights. Instead, Plaintiff’s
Complaint consists of nothing more than “unadorned, the-defendant-unlawfully-harmed-me
accusation[s].” Iqbal, 556 U.S. at 678. These “‘naked assertion[s]’ devoid of ‘further factual
enhancement’” fail to satisfy the basic federal pleading requirements set forth in Rule 8(a). Id.
(quoting Twombly, 550 U.S. at 557). Thus, it is RECOMMENDED that Plaintiff’s Complaint
be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
III.
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge

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and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court’s denial of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted))
IT IS SO ORDERED.

Date: March 25, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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