United States District Court, W.D. Tennessee, Western Division
BEVERLY J. FALKNER, Plaintiff,
MADISON AT CYPRESS LAKES & 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 " Madison at Cypress Lakes & 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 Madison at Cypress Lakes.
The complaint appears to be a copy of the complaint that Plaintiff filed in the case styled " Falkner v Madison at Cypress Lakes & its Owners and Watergrove Investors, LLC.", 11-cv-03130-STA-tmp filed on December 27, 2011. In the instant complaint, Plaintiff has removed Watergrove Investors, LLC as a defendant, included handwritten references to " Defendant, Leasing Agent, Tiffany" and " Edward, Office Manager, Defendant" and amended her demand for compensatory damages to include " or whatever is determined by U.S. District Court, Western District of Tennessee. Plaintiff will accept installment payment plan for any remaining balance through the Court." and added a handwritten reference at the bottom of the page " All backup information available in scan or on Docket under Number 11-3130-STA for this complaint. I do not have funds to print information stored under this number." All of the substantive claims in the instant complaint are identical to those made in 11-cv-03130.
The Complaint alleges that, in May, 2010, Plaintiff applied to become a tenant at Madison. Plaintiff was charged a fee of two hundred fifty dollars ($250.00) because of her " credit issues." (ECF No. 1 at 1.) The Complaint alleges that " Defendant did not apply the fee anywhere on the lease." (Id.) Plaintiff also paid a security deposit in the amount of eighty-seven dollars and fifty cents ($87.50). (Id.) The Complaint further alleges that, on move-in day in May, 2010, Defendant refused to give Plaintiff the keys until she presented " mandatory proof of Apartment Dwellers Insurance." (Id.) Plaintiff obtained the required insurance from State Farm, and she received the keys to her apartment. She avers that " [i]nsurance has expired and defendant has not contacted Plaintiff regarding renewal." (Id.) Plaintiff seeks money damages in the amount of $3, 555, 000. (Id. at 2.
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 ...