Dey et al v. Item et al

Filing 3

MEMORANDUM OPINION AND ORDER, Granting 1 MOTION for Leave to Proceed in forma pauperis filed by Doris Mae Dey, John Downs AND ORDER DISMISSING CASE without prejudice and striking the case from the docket for the reasons more fully set forth in said memorandum opinion and order. Signed by Judge Norman K. Moon on 3/6/15. (hnw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

DORIS MAE DEY , ET AL,

CIVIL NO . 3:15CV 00009
Plaintiffs,

v.

MEMORANDUM OPINION
AND ORDER

ROBERT M. ITEM , ET AL,
Defendants.
JUDGE NORMAN K. MOON

The pro se Plaintiffs filed an application to proceed without prepaying fees or costs,
along with a complaint. I hereby grant Plaintiffs’ motion and dismiss the complaint pursuant to
28 U.S.C. § 1915 for failure to state a claim upon which relief may be granted.
Under 28 U.S.C. § 1915, district courts have a duty to screen initial filings and dismiss a
complaint filed in forma pauperis “at any time if the court determines that . . . the action or
appeal . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be
granted. . . .” 28 U.S.C. § 1915(e)(2)(B)(i)-(ii); see also Eriline Co. S.A. v. Johnson, 440 F.3d
648, 656 (4th Cir. 2006). “[Section] 1915 permits district courts to independently assess the
merits of in forma pauperis complaints, and ‘to exclude suits that have no arguable basis in law
or fact.’” Eriline, 440 F.3d at 656 (quoting Nasim v. Warden, Md. House of Correction, 64 F.3d
951, 954 (4th Cir. 1995)).
Upon review of the complaint, Plaintiffs fail to state a legal claim upon which relief may
be granted. Several weeks ago, Plaintiffs filed a complaint in forma pauperis, which I dismissed
for failure to state a claim. The previous complaint contained enough information that I could
discern that it involved an unlawful detainer proceeding against Plaintiffs after the foreclosure

sale of a property they inhabited.
The instant complaint includes a “STATEMENT OF CLAIM,” which states the
following (quoted verbatim):
Plaintiff asserts that the above named Defendants[1] have caused immeasurable
harm to the Plaintiffs and the people of the Commonwealth of Virginia. February
13, 2015. The court failed to consider a duly recorded motion by complainants as
attached to the case as presented at the hearing on afore stated date. The
complaints objected to proceeding at the hearing without servicing the
aforementioned defendants as none where at the hearing as requested in the
attached motion but judgement was rendered for possession for unlawful detainer.
As stated First at the hearing we the complainants expressed Not unlawful
retainer but, Ownership. The Loan servicer and Trustee both had received
notirized request for veification of debt prior to the trustee sale and requesting a
ten day responce. As of the date never any responce.
The complaint continues with a handwritten section that states, “As we seek adjudication
in a court having proper jurisdiction and not one such as a General District not having subject
matter jurisdiction.” The next page states the following: “Request for stay of any writ from
lower court until adjudicated.”
The next (and final) page states as follows (quoted verbatim):
CONCLUSION
In light of all the foregoing facts it is quite evident that the Defendants
have violated dew process and acted in bad faith by denying Plaintiffs their
unalienable rights and having caused immeasurable harm to not only the Plaintiffs
but to the Plaintiff’s family, client’s and the public at large. Plaintiffs have
properly state a claim upon which relief can be granted therefore and thereby
eradicating any attempt by the Defendants to file a standard frivolous Motion to
Dismiss response pursuant to Rule 12(b) by falsely claiming Plaintiffs have not
stated a claim upon which relief can be granted.
PRAYER FOR RELIEF SOUGHT

1

The style of the complaint lists the following defendants: “Robert M. Item c/o Argent Development
LLC”; “Daniel Delpesche c/o Ocwen Loan Servicing LLC Trustee Services of Virginia LL”; and “Brock &
Scott LLC.”

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a.i.1. Plaintiffs are seeking actual, general, punitive, compensatory and special
damages to be determined at a trial by jury.
a.i.2. For Declaratory Relief, including but not limited to the following decrees
of the court that:
a)

Plaintiffs are the prevailing party.

b)

That Plaintiffs never engaged
constitutionally protected conduct.

c)

Compensate Plaintiffs $3 million dollars each for civil rights
violation, abuse of power, emotional distress, mental anguish and
public embarrassment.

d)

Injunction filed against Defendant’s to deter future from
committing similar felonious acts.

in

any

wrongdoing

but

Principles requiring generous construction of pro se pleadings are not without limits.
Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). A complaint must contain
either direct or inferential allegations respecting all the material elements of some viable legal
theory to satisfy federal notice pleading requirements. See Scheid v. Fanny Farmer Candy
Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). And, although district courts have a duty to
construe pro se pleadings liberally, a pro se plaintiff must nevertheless allege facts that state a
cause of action, and district courts are not required “to conjure up questions never squarely
presented to them.” Beaudett, 775 F.2d at 1278 (adding that “[d]istrict judges are not mind
readers”). A court is not obliged to ferret through a complaint, searching for viable claims. See
Holsey v. Collins, 90 F.R.D. 122 (D. Md.1981); see also Spencer v. Hedges, 838 F.2d 1210
(Table) (4th Cir. 1988). A plaintiff must provide enough detail to illuminate the nature of the
claim and allow defendants to respond. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A
court may dismiss a complaint that is “so confused, ambiguous, vague or otherwise unintelligible
that its true substance, if any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
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1988).
Plaintiffs are advised that, although “detailed factual allegations” are not required, the
“obligation to provide the ‘grounds’ of [their] ‘entitle[ment] to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do”; in
other words, their “factual allegations must be enough to raise a right to relief above the
speculative level. . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 557).2 Accordingly, courts are entitled to dismiss claims when the pleadings are “conclusory.”
Id., 556 U.S. at 681 (“To be sure, we do not reject these bald allegations on the ground that they
are unrealistic or nonsensical. . . . It is the conclusory nature of respondent’s allegations, rather
than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”).
For these reasons, the motion to proceed in forma pauperis is GRANTED, and the Clerk
of the Court is DIRECTED to file the complaint, which is hereby DISMISSED without
prejudice, and the case is STRICKEN from the court’s active docket.
It is so ORDERED.
The Clerk is further DIRECTED to send a certified copy of this order to the pro se

2

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986))). Rule 8(a)(1) calls for “a short and plain statement of the grounds for the
court’s jurisdiction,” Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader
is entitled to relief,” and Rule 8(d)(1) requires that each averment of a pleading be “simple, concise, and
direct.” A pleading “does not have to set out in detail the facts on which the claim for relief is based,” 2
Moore’s Federal Practice ¶ 8.04[1], at 8-22 (3d ed. 2002), but must give the court and the defendant “fair
notice of what that plaintiff’s claim is and the grounds upon which it rests.” Swirkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Plaintiffs.
6th
Entered this _______ day of March, 2015.

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