United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS
REPORT AND RECOMMENDATION PURSUANT TO 28 U.S.C. §
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE.
the Court, by way of Administrative Order 2013-05,
a pro se complaint filed on August 15, 2016 by
Plaintiff Bert Jerome Galloway, resident of Memphis,
Tennessee, against William P. Gardinier and Seneca Foods
Corporation, accompanied by a motion seeking leave to proceed
in forma pauperis. (Docket Entries
("D.E.") 1 & 2.)
law provides that the “clerk of each district court
shall require parties instituting any such civil action, suit
or proceeding in such court, whether by original process,
removal or otherwise, to pay a filing fee of $400, " 28
U.S.C. § 1914(a). To ensure access to the courts,
however, 28 U.S.C. § 1915(a) permits an indigent
plaintiff to avoid payment of filing fees by filing an in
forma pauperis affidavit. Under that section, the Court
must conduct a satisfactory inquiry into the plaintiff's
ability to pay the filing fee and prosecute the lawsuit. A
plaintiff seeking in forma pauperis standing must
respond fully to the questions on the Court's in
forma pauperis form and execute the affidavit in
compliance with the certification requirements contained in
28 U.S.C. § 1746.
case, the Plaintiff has submitted a properly completed and
executed in forma pauperis affidavit. The
information set forth in the affidavit satisfy
Plaintiff's burden of demonstrating that he is unable to
pay the civil filing fee. Accordingly, the motion to proceed
in forma pauperis is GRANTED.
Clerk shall record the defendants as William P. Gardinier and
Seneca Foods Corporation.
filed a complaint utilizing the court's form for
complaints alleging violation of civil rights under 42
U.S.C.§ 1983. Plaintiff alleges that the defendants
violated his constitutional rights on April 25, 2016 by
exposing him to foreign objects and defective materials in a
can of fancy cut green beans. Plaintiff further alleges
significant physical illness and injuries as a result of
ingesting the green beans. Plaintiff asks the court to force
the “defendants to give Plaintiff reason (sic) why
[his] 1st, 5th, 4th,
8th and 14th rights under U.S.
amendments were violated.” Plaintiff seeks $45 million
and the costs of the action.
Court is required to screen in forma pauperis
complaints and to dismiss any complaint, or any portion
thereof, if the actionC
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2).
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.").
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 not have