Tubb v. D.C.S. Morristown

Filing 5

ORDER re 2 MOTION for Leave to Proceed in forma pauperis filed by Darcy Tubb and 1 MOTION for Leave to Proceed in forma pauperis filed by Carolyn Tubb; REPORT AND RECOMMENDATIONS re 3 Complaint filed by Carolyn Tubb and Darcy Tubb. For the reasons more fully stated below, the Court finds that the Plaintiff should be allowed to file her Complaint without prepayment of costs, but the Court RECOMMENDS that the Complaint be DISMISSED for jurisdictional deficiencies and pursuant to 28 U.S.C. § 1915(e). The Clerk SHALL NOT issue process, however, at this time.Signed by Magistrate Judge H Bruce Guyton on 10/17/2013. (KAW) (c/m to Carolyn Tubb and Darcy Tubb.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

CAROLYN TUBB, et al.,
Plaintiffs,
v.
D.C.S. MORRISTOWN, et al.,
Defendants.

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No. 3:13-CV-595
(COLLIER/GUYTON)

REPORT AND RECOMMENDATION
This case comes before the undersigned pursuant to 28 U.S.C. § 636(b) and the Rules of this
Court for consideration of Plaintiff’s Motion and Application To Proceed In Forma Pauperis, which
has been filed in the above case on October 7, 2013. The undersigned files this Report and
Recommendation for the District Judge to whom this case is assigned. For the reasons more fully
stated below, the Court finds that the Plaintiff should be allowed to file her Complaint without
prepayment of costs, but the Court RECOMMENDS that the Complaint be DISMISSED for
jurisdictional deficiencies and pursuant to 28 U.S.C. § 1915(e).

I.

FILINGS AND ALLEGATIONS
The Plaintiff has filed an application to proceed in forma pauperis, with the required

detailing of her financial condition. The application demonstrates that the Plaintiff has little income
and few assets.
In her Complaint, filed on October 7, 2013, the Plaintiff alleges that her daughter placed

Plaintiff’s grandchildren “in her care when she was arrest[ed]. D.C.S. [Department of Children’s
Services] came to our home and took us to the D.C.S. office.”
Plaintiff also sues Free Will Baptist Family Ministries, a facility which apparently provides
foster care for children. Plaintiff alleged that D.C.S. placed her grandchildren at this facility. She
alleges that Free Will “made up lies” about her and that she was not allowed to see her
grandchildren. Plaintiff also sues two judges, because they “knew of this injustice and allowed it
to go on.” Plaintiff seeks return of her grandchildren “to their mother,” and ten million dollars in
damages.

II.

ANALYSIS

A.

Jurisdiction
Federal courts are courts of limited jurisdiction. Congress has conferred upon this Court, and

other federal courts, the jurisdiction to hear only two types of civil cases: those arising under the
United States Constitution and the laws and treaties of the United States, see 28 U.S.C. § 1331, and
those cases in which the amount in controversy exceeds $75,000.00 and the parties are diverse, see
28 U.S.C. § 1332.
The Plaintiff has not alleged a cause of action arising out of the Constitution, laws, or treaties
of the United States, and though she claims damages of ten million dollars, there are no facts alleged
which support diversity jurisdiction.
Thus, the Court finds the Plaintiff has failed to demonstrate any grounds for federal
jurisdiction in this case.

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B.

Indigency and Failure to State a Claim
In addition to federal jurisdiction standards, applications to proceed in forma pauperis are

governed by 28 U.S.C. § 1915. The purpose of 28 U.S.C. § 1915 is to ensure that indigent litigants
have meaningful access to the courts. Adkins v. W.I. DuPont de Nemours & Co., 335 U.S. 331, 342
(1948); Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827 (1989). To accomplish this end, a
court must evaluate the litigant’s indigence, but notwithstanding indigence, a court may sua sponte
dismiss a matter under 28 U.S.C. § 1915 if the litigation is frivolous and malicious or fails to state
a claim upon which relief can be granted.
The Court will address the indigence and merits components of 28 U.S.C. § 1915 in turn.

1.

Indigence
Section 1915 allows a litigant to commence a civil or criminal action in federal court without

paying the administrative costs of the lawsuit. Denton v. Hernandez, 504 U.S. 25 (1992). The
court’s review of an in forma pauperis application is normally based solely on the affidavit of
indigence. See Gibson v. R.G. Smith Co., 915 F.2d 260, 262-63 (6th Cir. 1990). The threshold
requirement which must be met in order to proceed in forma pauperis is that the petitioner show, by
affidavit, the inability to pay court fees and costs. 28 U.S.C. § 1915(a). However, one need not be
absolutely destitute to enjoy the benefit of proceeding in forma pauperis. Adkins, 335 U.S. at 342.
An affidavit to proceed in forma pauperis is sufficient if it states that the petitioner cannot because
of poverty, afford to pay for the costs of litigation and still pay for the necessities of life. Id. at 339.
In the present case, the Plaintiff’s Application to Proceed Without Prepayment of Fees and
Plaintiff’s economic status has been considered in making the decision of whether to grant leave to
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proceed in forma pauperis, and it appears that Plaintiff’s application sets forth grounds for so
proceeding. The Application to Proceed In Forma Pauperis and Application to Proceed Without
Prepayment of Fees are, therefore, GRANTED.
The Clerk is DIRECTED to file the complaint in this case without prepayment of costs or
fees. See Gibson, 915 F.2d at 262-63. The Clerk SHALL NOT issue process, however, at this
time.

2.

Merits
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), the district court may dismiss a complaint

as frivolous or if it fails to state a claim upon which relief can be granted. See Neitzke, 490 U.S.
319.1
Failure to State a Claim Upon Which Relief Can Be Granted
As the Court previously noted, though the Court has construed the pleadings liberally, the
Court has found that there is no allegation of federal jurisdiction contained therein. The substance
of the Plaintiff’s allegations appear to constitute a state law claim, if any, which would be a
complaint about actions taken by D.C.S., Free Will, and the two state court judges. However, such
a claim must be brought in state court. Accordingly, the Court recommends that the Plaintiff’s action
should be dismissed for lack of federal jurisdiction.

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Plaintiff herein is not a prisoner. However, 28 U.S.C. § 1915, despite its references to prisoners,
is not limited to prisoner suits. United States v. Floyd, 105 F.3d 274 (6th Cir. 1997) and Powell v.
Hoover, 956 F. Supp. 564 (M.D. Pa.) (1997).

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III.

CONCLUSION
In sum, the Court finds the Plaintiff’s motion and application to proceed in forma pauperis

to be well-taken, and the Clerk is DIRECTED to file the complaint in this case without prepayment
of costs or fees. No process shall issue, however, until the District Judge has ruled upon this Report
and Recommendation,2 because it is RECOMMENDED3 that the Complaint be DISMISSED due
to its jurisdictional deficiencies.
Respectfully submitted,

s/ H. Bruce Guyton
United States Magistrate Judge

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This matter is to be presented to a District Judge pursuant to this Report and Recommendation
under the authority of Gibson v. R.G. Smith Co., 195 F.2d at 263, wherein the court states that such
matters proceed automatically to a district judge for examination of the complaint after a magistrate
judge has granted the petition to proceed in forma pauperis.
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Any objections to this Report and Recommendation must be served and filed within fourteen
(14) days after service of a copy of this recommended disposition on the objecting party. Fed. R. Civ. P.
72(b)(2). Such objections must conform to the requirements of Rule 72(b), Federal Rules of Civil
Procedure. Failure to file objections within the time specified waives the right to appeal the District
Court’s order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985). The district court need not provide
de novo review where objections to this report and recommendation are frivolous, conclusive or general.
Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate
review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).

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