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Jones v. Mangrum

United States District Court, M.D. Tennessee, Nashville Division

February 23, 2017

CEDRIC JONES, Plaintiff,
v.
JASON MANGRUM et al., Defendants.

          MEMORANDUM OPINION

          Aleta A. Trauger United States District Judge.

         The plaintiff Cedric Jones is a state prisoner presently incarcerated at the South Central Correctional Facility in Clifton, Tennessee. Before the court is the plaintiff's application to proceed in forma pauperis (ECF No. 2). In addition, his complaint is before the court for an initial review pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(e)(2) and 1915A, and 42 U.S.C. § 1997e.

         I. Application to Proceed as a Pauper

         Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(a), a prisoner bringing a civil action may be permitted to file suit without prepaying the filing fee of $350 required by 28 U.S.C. § 1914(a). Because the plaintiff properly submitted an in forma pauperis affidavit, and because it appears from his submissions that the plaintiff lacks sufficient financial resources from which to pay the full filing fee in advance, the application (ECF No. 2) is GRANTED.

         However, under § 1915(b), the plaintiff nonetheless remains responsible for paying the full filing fee. The obligation to pay the fee accrues at the time the case is filed, but the PLRA provides prisoner-plaintiffs the opportunity to make a “down payment” of a partial filing fee and to pay the remainder in installments. Accordingly, the plaintiff is hereby ASSESSED the full $350 filing fee, to be paid as directed in the accompanying order.

         II. Dismissal of the Complaint

         A. Legal Standard

         Under the PLRA, the court must conduct an initial review of any civil complaint brought by a prisoner if it is filed in forma pauperis, 28 U.S.C. § 1915(e)(2), seeks relief from government entities or officials, 28 U.S.C. § 1915A, or challenges the prisoner's conditions of confinement, 42 U.S.C. § 1997e(c). Upon conducting this review, the court must dismiss the complaint, or any portion thereof, that fails to state a claim upon which relief can be granted, is frivolous, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) and 1915A; 42 U.S.C. § 1997e(c). The Sixth Circuit has confirmed that the dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), “governs dismissals for failure to state a claim under those statutes because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Thus, to survive scrutiny on initial review, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         In reviewing the complaint to determine whether it states a plausible claim, “a district court must (1) view the complaint in the light most favorable to the plaintiff and (2) take all well- pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations omitted)). A pro se pleading must be liberally construed and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The Court is not required to create a claim for the plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975); see also Brown v. Matauszak, 415 F.App'x 608, 613 (6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading”) (internal quotation marks and citation omitted); Payne v. Sec'y of Treas., 73 F.App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.R.Civ.P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create Payne's claim for her”). To demand otherwise would require the “courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Finally, the Court need not sift through exhibits attached to the plaintiff's complaint in order to determine what, if any, basis exists for the plaintiff's claims against the defendants. See Jackson v. Lawrence Corr. Ctr. Heatlh Care, No. 15-cv-00082-JPG, 2015 WL 603853, at *2 (S.D. Ill. Feb. 12, 2015).

         B. Discussion

         The plaintiff sues attorney Jason Magrum, the law firm Mackie, Wolf, Zientz and Mann, P.C. (MWZM), Wilmington Trust Company and Terence Jones, the plaintiff's brother, under 42 U.S.C. §1983. In his form §1983 complaint, the plaintiff claims that due to circumstances beyond his control, the home he owned with his former wife was foreclosed upon. He alleges that the foreclosure was fraudulent. He claims that the defendants violated his Fifth, Eighth and Fourteenth Amendment rights. As an attachment to the plaintiff's form § 1983 complaint he files what appears to be another complaint, in which he alleges a variety of claims sounding in state law along with claims for violation of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §2601 et seq. and violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq. Finally, in addition to asserting claims under §1983, the plaintiff asserts that he seeks a writ of replevin.

         Because the plaintiff has failed to state any claims upon which relief can be granted, his complaint will be dismissed. To the extent he asserts claims sounding in state law, those claims will be dismissed without prejudice to the plaintiff's ability to raise them in state court.

         1. §1983

         The Plaintiff sues two individuals and two entities. There are no allegations in the complaint to suggest that any ...


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