Montgomery v. City of Columbus et al

Filing 2

ORDER and REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis filed by Shamar W. Montgomery in that it is RECOMMENDED that the Court DISMISSES Plaintiff's Complaint. Objections to R&R due by 3/20/2018. Signed by Magistrate Judge Chelsey M. Vascura on 3/6/18. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHAMAR W. MONTGOMERY,
Plaintiff,
Civil Action 2:18-cv-187
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

v.

CITY OF COLUMBUS, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Shamar W. Montgomery, an Ohio resident proceeding without the assistance of
counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court
GRANTS Plaintiff’s request to proceed in forma pauperis. 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
Amended 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, however, “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, which
provides in pertinent part as follows:
(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, § 1915(e) requires sua sponte
dismissal of an action upon the 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 properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 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. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).

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Formerly 28 U.S.C. § 1915(d).
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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)). 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), “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. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has
limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.
Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989)).
II.
Plaintiff identifies the following defendants in his Complaint: City of Columbus, Judge
Lynch, “the public,” “the owners of businesses,” “the nation of the United States,” “courthouse
in Columbus Ohio,” and “Any person to harm me for my feedom [sic] of religion [sic].” (Pl.’s

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Compl. 2, ECF No. 1-1.)

The entirety of Plaintiff’s “Statement of Claim” in his Amended

Complaint provides as follows:
I’m mental! But in school all my life because that what I was taught from brith
[sic] to serve my Lord to monopolize [sic] over my understand[ing] of a man as a
boy up.
(Id. at 3) In the relief section of his Complaint, Plaintiff states as follows:
Pay me my 25,000 which was my money from Columbus from Judge Lynch and
the city jail in Columbus Ohio and pain and suffering for being stronger than
norm on earth.
(Id. at 4.)
Plaintiff’s Complaint provides insufficient factual content or context from which the
Court could reasonably infer that Defendants violated Plaintiff’s rights. Thus, he has failed to
satisfy the basic federal pleading requirements set forth in Rule 8(a). Twombly, 550 U.S. at 555.
Moreover, the allegations Plaintiff sets forth in his Amended Complaint are so nonsensical as to
render his Amended Complaint frivolous. A claim is frivolous if it lacks “an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The former occurs when
“indisputably meritless” legal theories underlie the complaint, and the latter when it relies on
“fantastic or delusional” allegations. Id. at 327–28. This Court is not required to accept the
factual allegations set forth in a complaint as true when such factual allegations are “clearly
irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F. App’x 427, 429–30 (6th Cir. 2009)
(citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)). For these reasons, it is
RECOMMENDED that Plaintiff’s Complaint be DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).

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III.
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this
action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or
recommendations to which objection is made. Upon proper objections, a Judge of this Court
may accept, reject, or modify, in whole or in part, the findings or recommendations made
herein, may receive further evidence or may recommit this matter to the Magistrate Judge with
instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision
of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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