Forbush v. Berenshteyn

Filing 6

MEMORANDUM OPINION. Signed by District Judge Travis R McDonough on 2/1/2024. (CNC)Mailed to Forbush (CNC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
THOMAS FORBUSH,
Plaintiff,
v.
ILYA BERENSHTEYN,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 2:23-cv-173
Judge Travis R. McDonough
Magistrate Judge Cynthia R. Wyrick

MEMORANDUM OPINION
Before the Court is Magistrate Cynthia R. Wyrick’s report and recommendation (Doc. 5),
which recommends that the Court dismiss Plaintiff’s complaint (Doc. 1).
Plaintiff filed the original complaint (Doc. 1) in this action on November 27, 2023, and
shortly thereafter filed a motion for leave to proceed in forma pauperis (Doc. 4). Under the
Prison Litigation Reform Act, district courts must screen pro se complaints and sua
sponte dismiss any claims that are frivolous or malicious, fail to state a claim on which relief
may be granted, or name a defendant who is immune. See 28 U.S.C. § 1915(e)(2); Baker v.
Wayne Cnty. Fam. Indep. Agency, 75 F. App’x 501, 502 (6th Cir. 2003) (“The statute requires
courts to dismiss in forma pauperis complaints that fail to state a claim[] and applies to
complaints filed by non-prisoners as well as prisoners.” (citations omitted)). Therefore,
Magistrate Judge Wyrick screened Plaintiff’s complaint in addition to considering the motion to
proceed in forma pauperis.
On screening, Magistrate Judge Wyrick found that Plaintiff’s complaint failed to meet the
screening standard. Specifically, Magistrate Judge Wyrick found that Plaintiff’s ineffective

assistance of counsel claim was premature given he pleaded guilty to multiple offenses in
Sullivan County, Tennessee. (Doc. 5, at 4–5.) Magistrate Judge Wyrick also recommends
dismissal of Plaintiff’s claim that Defendant engaged in criminal conduct by improperly billing
his time, because the Court lacks the ability to administer the relief Plaintiff seeks. (Id. at 5.)
Plaintiff has filed no objections to Magistrate Judge Wyrick’s report and recommendation and
the time to do so has now passed.
After reviewing the record, the Court agrees with Magistrate Judge Wyrick’s report and
recommendation. The Court hereby ACCEPTS and ADOPTS Magistrate Judge Wyrick’s
report and recommendation (Doc. 5). This action SHALL be DISMISSED WITHOUT
PREJUDICE as to Plaintiff’s ineffective-assistance-of-counsel claim and WITH PREJUDICE
as to Plaintiff’s claim regarding Defendant’s alleged criminal conduct.
AN APPROPRIATE JUDGMENT WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

2