Smith v. Employees who had dealings with her case and situation involving city of Huntington, State of West Virginia, Federal branches and any and all entities that were involved with those departments

Filing 11

MEMORANDUM OPINION AND ORDER adopting and incorporating herein the 7 Proposed Findings and Recommendations by Magistrate Judge Eifert; dismissing Plaintiff's 1 Complaint without prejudice; dismissing Plaintiff's Application to Proceed Without Prepayment of Fees and Costs within the 1 Complaint; directing the Clerk to remove this action from the docket. Signed by Judge Robert C. Chambers on 7/20/2018. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

TASHEMA D. SMITH,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-4421

EMPLOYEES who had dealings
with her case and situation involving
CITY OF HUNTINGTON, STATE of
WEST VIRGINIA, CABELL COUNTY
COMMISSION, FEDERAL BRANCHES
and any and all institutes that were
involved with these departments,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding pro se, filed her Complaint on November 20, 2017. ECF No. 1. After
consideration of Defendant’s Motion, Magistrate Judge Cheryl A. Eifert filed the present Proposed
Findings and Recommendation (PF&R) on February 14, 2018, in which she recommends that
Defendant’s Complaint be dismissed without prejudice. ECF No. 7. For the following reasons, the
Court ADOPTS AND INCORPORATES HEREIN the Magistrate Judge’s PF&R.
I.

Background

In the present Complaint, Plaintiff alleges that she suffered injuries as a result of the
harassment of “employees who had dealings with [Plaintiff’s] case and situation involving [the]
City of Huntington, State of West Virginia, Cabell [sic] County Commission, Federal Branches
and any and all institutes [sic] that were involved with these departments.” ECF No. 1. Plaintiff
also recites two federal statutes in her Complaint – 18 U.S.C. § 1514 and 15 U.S.C. § 162d. Id.

Because the Magistrate Judge undertook the complaint screening process after the Complaint was
filed, no summons were issued.
After considering Plaintiff’s Complaint, the Magistrate Judge found that Plaintiff has failed
to state a claim that is plausible on its face. ECF No. 7. Accordingly, the Magistrate Judge
recommends that this Court dismiss Plaintiff’s Complaint. Id.
II.

Standards of Review
a. Standard of Review of PF&R

In reviewing the PF&R, this Court must “make a de novo determination of those portions
of the … [Magistrate Judge’s] proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). In doing so, the Court can “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” Id. The Court, however, is not
required to review the factual or legal conclusions of the Magistrate Judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
b. Screening Standard of Review
Pursuant to 28 U.S.C. § 1915(e), where a plaintiff seeks to proceed in forma pauperis, the
Court is required to screen that plaintiff’s complaint and to dismiss the case if the complaint “fails
to state a claim upon which relief may be granted.” In order to sufficiently state a claim upon which
relief can be granted, the Complaint must include “a short and plain statement of [a] claim”
showing that the plaintiff “is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The claim asserted in that
statement must be “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).

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III.

Discussion

As a preliminary matter, the Court notes that Plaintiff’s objections to the present PF&R do
not specifically identify the portion of the proposed findings or recommendations to which Plaintiff
objects. As noted above, the Court is required to consider de novo only those portions of the PF&R
to which objection is made. Plaintiff’s filed objection does not even mention the Magistrate
Judge’s findings or recommendations, but instead simply reasserts the allegations as set forth in
the Complaint. See ECF No. 8. As the Magistrate Judge’s overarching finding is that Plaintiff has
failed to state a plausible claim, the Court will liberally construe Plaintiff’s objection as an
objection to this finding.
Upon careful review of Plaintiff’s Complaint, ECF No. 1, the Court finds that Plaintiff has
failed to state a claim upon which relief can be granted. First, Plaintiff failed to provide any factual
basis for her claims. She alleges several times over that she has been harassed, but she fails to
plead “factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation
and quotation omitted). Not only does Plaintiff not provide the Court with that requisite factual
content, she additionally fails to identify any specific person or entity against whom she asserts
her claims. Without a plausible factual basis for Plaintiff’s claims and without a specific person or
entity against whom the claims are brought, Plaintiff’s Complaint fails to state a claim upon which
relief can be granted. Accordingly, it must be dismissed at this time.
IV.

Conclusion

For the reasons stated above, the Court ADOPTS AND INCORPORATES the Magistrate
Judge’s PF&R. ECF No. 7. Plaintiff’s Complaint, ECF No. 1, is DISMISSED without prejudice.

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Accordingly, her Application to Proceed Without Prepayment of Fees and Costs, ECF No. 1, is
also DISMISSED. The Court DIRECTS the Clerk to remove this action from the docket.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

July 20, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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