Easterling v. U.S. Attorney General

Filing 4

REPORT AND RECOMMENDATIONS - Since the premise of this case is completely at odds with both law and fact, it should be dismissed with prejudice. Objections to R&R due by 4/11/2017. Signed by Magistrate Judge Michael R. Merz on 3/28/2017. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON WARREN EASTERLING, Plaintiff, - vs : Case No. 3:17-cv-101 District Judge Walter Herbert Rice Magistrate Judge Michael R. Merz - JEFFREY SESSIONS, Defendant. : REPORT AND RECOMMENDATIONS This action is before the Court for review prior to issuance of process. Plaintiff was granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. 28 U.S.C. § 1915(e)(2), as amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective April 26, 1996)(the "PLRA"), reads as follows: 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 (A) the allegation of poverty is untrue; or (B) the action or appeal -(i) is frivolous or malicious; (ii) fails to state a claim upon which relief can be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous under this statute if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989). 1 In deciding whether a complaint is “frivolous,” that is, the Court does not consider whether a plaintiff has good intentions or sincerely believes that he or she has suffered a legal wrong. Rather the test is an objective one: does the complaint have an arguable basis in law or fact? It is appropriate for a court to consider this question sua sponte prior to issuance of process "so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is permitted under § 1915(e) only "if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). § 1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma pauperis status. Benson v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). Filing an in forma pauperis application tolls the statute of limitations. Powell v. Jacor Communications Corporate, 320 F.3d 599 (6th Cir. 2003)(diversity cases); Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)(federal question cases). As the sole Defendant, Mr. Easterling has sued the Attorney General of the United States. In the body of the Complaint Mr. Easterling alleges that various judges of this Court, including District Judge Thomas Rose and Magistrate Judge Michael Newman have failed to hear and appropriately decide prior cases he has filed in this Court, including 3:16-cv-340, 3:16-cv-375, and 3:16-cv-067. Throughout the Complaint he refers to these Judges as “subordinate judges” to Attorney General Sessions. 2 The Attorney General of the United States is an officer of the Executive Branch of the United States Government. The judges complained of all hold their commissions under Article III of the Constitution, Judge Rose directly as a presidential appointee confirmed by the United States Senate and Judge Newman by virtue of appointment as a Magistrate Judge by the District Court. Neither one of them is a subordinate of the Attorney General and Mr. Easterling’s assertion to the contrary is both wrong and frivolous. Since the premise of this case is completely at odds with both law and fact, it should be dismissed with prejudice. March 28, 2017. s/ Michael R. Merz United States Magistrate Judge NOTICE REGARDING OBJECTIONS Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by mail. .Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party=s objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985). 3

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