United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION PURSUANT TO 28 U.S.C. § 1915
CHARMIANE G. CLAXTON, Magistrate Judge.
Before the Court, by way of Administrative Order 2013-05,  is a pro se complaint filed on September 16, 2013 by Plaintiff Beverly Falkner, resident of Memphis, Tennessee, against Computershare Investor Services 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.) The motion for leave to proceed in forma pauperis was granted on October 8, 2013 (D.E. # 4) and the motion for appointment of counsel was denied on October 11, 2013. (D.E. # 5)
Plaintiff's complaint states
"Attached is correspondence received from Computershare after communication on the telephone regarding loss of Certificate and value of Shares for Back Yard Burgers. I was told on the telephone that the Shares had been sold and $2918.50 (two thousand nine hundred eighteen dollars and fifty cents) was all I would receive as payment. I have not taken any further action. There are other shares on my certificate."
(D.E. # 1, p 1)
Plaintiff states that she "prays for compensatory damages determined by the court." Attached is correspondence from the defendant to the plaintiff. (D.E. # 1, p 2-8)
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 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (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 (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 ...