United States District Court, W.D. Tennessee, Western Division
BEVERLY J. FALKNER, Plaintiffs,
FRANKIE'S AND ITS OWNERS, Defendant
Beverly J. Falkner, Plaintiff, Pro se, Memphis, TN.
REPORT AND RECOMMENDATION
CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE.
On June 25, 2013, Plaintiff Beverly J. Falkner, a resident of Memphis, Tennessee, filed a pro se complaint against " Frankie's and Its Owners.", accompanied by a motion seeking leave to proceed in forma pauperis and a motion for appointment of counsel. (Docket Entries (" D.E.") 1, 2 & 3.) In an order entered on October 7, 2013, the Court granted leave to proceed in forma pauperis . (D.E. # 10) Plaintiff's Motion to Appoint Counsel was denied on October 11, 2013. (D.E. # 11) The Clerk shall record the Defendant as Frankie's.
The complaint appears to be a copy of the complaint that Plaintiff filed in the case styled " Falkner v Frankie's and Its Owners, et al.", 11-cv-03015-JTF-cgc filed on November 14, 2011. In the instant complaint, Plaintiff has removed A & A Financial, LLC and Its Owners, Airport Auto Center, LLC and Its Owners, Bill Blake Insurance and Its Owners, First Acceptance Insurance Company of Tennessee and Its Owners, First Acceptance Insurance Company, Inc. and Its Owners, and U.S. Auto Holdings, Inc. and Its Owners as defendants, struck the reference to " Racketeering" in the caption, struck paragraph 4 in which Plaintiff alleges that she met with a counselor at the Veterans Hospital because the incident caused her overwhelming stress, struck all prayers for damages against the omitted defendants and replaced her demand for compensatory damages against Frankie's amounting to " $15, 999, 999.99 (fifteen million, nine hundred ninety-nine thousand, nine hundred ninety-nine dollars and ninety-nine cents)" with " whatever is determined by U.S. District Court, Western District of Tennessee" and added " Plaintiff will accept installment payment plan for any remaining balance through the Court." Plaintiff also added a handwritten reference that " All backup information available in scan or on Docket under Number 11-3015-JTF, for this complaint. I do not have funds to print information stored under this number." All of the substantative claims in the instant complaint are identical to those made in 11-cv-03015.
The complaint alleges that, on October 26, 2011, Plaintiff met with unspecified persons at Defendants Frankie's at 2471 Covington Pike about the purchase of a 2005 Chevrolet Malibu. (D.E. #. 1 at 1.) Plaintiff alleges that she paid $1000.00 to Defendant Frankie's as a down payment on the car. (Id.) Plaintiff alleges that she did not have money for insurance. (Id.) Plaintiff alleges that after Defendant Frankie's contacted Bill Blake Insurance/First Acceptance Insurance Company, Inc./US Auto Holding, Inc., she was told that insurance would be $150.00. (Id.) Plaintiff alleges that she signed a promissory note with Frankie's agreeing to repay $150.00 by October 28, 2011. (Id.) Plaintiff alleges that she repaid the $150.00 debt on October 27, 2011. (Id.) Plaintiff complains that Frankie's did not inform her that additional funds for insurance would be due before November 26, 2011. (Id.) Plaintiff alleges that she believed that she was purchasing and not leasing the vehicle. Plaintiff alleges that on November 7, 2011, she received an invoice from Bill Blake Insurance and First Acceptance Insurance Company of Tennessee, Inc. requesting payment of $182.32 by November 22, 2011, including a $15.00 reinstatement fee. (D.E. # 1 at 2.) Plaintiff complains that she never received a policy and contends that Defendant Frankie's never activated her insurance despite loaning her $150.00 for the initial insurance payment. (Id.)
The Court is required to screen in forma pauperis complaints and to dismiss any complaint, or any portion thereof, if the action:
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e) (2).
In assessing whether the complaint in this case states a claim on which relief may be granted, the Court applies the standards under Federal Rule of Civil Procedure 12(b) (6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). " Accepting all well-pleaded allegations in the complaint as true, the Court 'consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief'." Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681) (alteration in original). " [P]leadings that . . . are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 (" Rule 8(a) (2) still requires a 'showing, ' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests.").
" A complaint can be frivolous either factually or legally. Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325, 328-29, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)).
Whether a complaint is factually frivolous under § § 1915A(b) (1) and 1915(e) (2) (B) (i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give " judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. 1827 (interpreting 28 U.S.C. § 1915). Unlike a dismissal for failure to state a claim, where a judge must accept all factual allegations as true, Iqbal, 129 S.Ct. at 1949-50, a judge does not have to ...