United States District Court, M.D. Tennessee, Nashville Division
A. Trauger United States District Judge.
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.
Application to Proceed as a Pauper
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.
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.
Dismissal of the Complaint
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).
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).
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.
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.
Plaintiff sues two individuals and two entities. There are no
allegations in the complaint to suggest that any ...