Carter v. Paul Eagle Loan et al

Filing 3

ORDER & REPORT AND RECOMMENDATIONS re 2 Complaint: The Magistrate Judge RECOMMENDS that the Court DISMISS this action for failure to state a claim. Objections to R&R due within fourteen (14) days of the date of this Report. The 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/4/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CARDIONAL ANNA VINES CARTER,
Plaintiff,
Civil Action 2:13-cv-302
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

PAUL EAGLE LOAN, et al.,
Defendants.

ORDER and INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Cardional Anna Vines Carter, an Ohio resident who is proceeding without the
assistance of counsel, brings this action against Defendants, Paul Eagle Loan, Lyndon Southern
Insurance Company, Lyndon Property Insurance Company, Grant Hospital, OSU Harding
Hospital, Group Policy Number NO565101-87292, and Claims Services Center. This matter is
before the Court for consideration of Plaintiff’s Motion for Leave to Proceed In Forma Pauperis.
(ECF No. 1.) The Motion is GRANTED. Accordingly, it is ORDERED that judicial officers
who render services in this action shall do so as if the costs had been prepaid. This matter is also
before the Court for the initial screen of Plaintiff’s Complaint under 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 this action for failure to state a claim.

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)).
II.
The Undersigned finds that Plaintiff has failed to satisfy the basic pleading requirements
set forth in Rule 8(a). Much of Plaintiff’s Complaint is illegible and incomprehensible. As best

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the Court can discern, on some unspecified date, Plaintiff obtained a loan from Eagle Financial
Services. She alleges that she was hospitalized, but it is not clear from her Complaint when or
where. Plaintiff also appears to allege that she has various insurance policies. She further
appears to allege that withdrawals were taken from her account at Chase Bank or that her
grandaughter made payment on these policies in October 2012. She alleges that approximately
$30,000 worth of property was stolen from her home on some unspecified date and that she
made a report of this theft. In terms of relief, Plaintiff seeks $29,854 “for fraud”; damages for
“loss of work”; either $59,545, $75,000, or $134,545 for her “mom’s stock”; and her “credit
report to be fixed.” (Compl. 4, ECF No. 1-2.) These allegations fail to put any of the defendants
on fair notice of what claims Plaintiff is alleging against them as required under Rule 8(a)(2).
III.
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s Complaint be
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
PROCEDURE ON OBJECTIONS
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
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
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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: April 4, 2013

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

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