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Olivier v. Hicks

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

April 20, 2017

MARDOCHE OLIVIER, Plaintiff,
v.
ROSS H. HICKS, Defendant.

          MEMORANDUM OPINION

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE

         The plaintiff Mardoche Olivier, proceeding pro se, has filed a civil rights complaint against defendant Ross H. Hicks. (ECF No. 1.)[1] Additionally, the plaintiff has applied to proceed in forma pauperis. (ECF No. 2)

         Because it is apparent from the plaintiff's application that he lacks sufficient resources from which to pay the required filing fee, his application to proceed in forma pauperis (ECF No. 2) will be granted.

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to conduct an initial review of any complaint filed in forma pauperis and to dismiss the complaint if it is facially frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. Begola v. Brown, 172 F.3d 47 (Table), 1998 WL 894722, at *1 (6th Cir. Dec. 14, 1998) (citing McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). The Court must construe a pro se plaintiff's complaint liberally, Boag v. McDaniel, 454 U.S. 364, 365 (1982), and accept the plaintiff's allegations as true unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         Applying these standards, the plaintiff's action will be dismissed because he fails to state a claim upon which relief may be granted and because he seeks relief against a defendant who is immune from suit.

         I. FACTUAL ALLEGATIONS

         In his complaint, the plaintiff alleges that on December 9, 2016, he filed an inverse condemnation suit against the City of Clarksville and sought to proceed as a pauper under state law. On December 13, 2016, the defendant allegedly “instructed clerks not to all [sic] [the plaintiff] to file any civil complaints stating that plaintiff must pay all costs in previously dismissed cases before he will be allowed to proceed on further cases on a[n] indigency basis.” (ECF No. 1 at Paged ID# 2.) The plaintiff alleges that the defendant unlawfully dismissed his prior lawsuits to protect the City of Clarksville and its employees from suit. The plaintiff claims that the defendant has violated his rights under 18 U.S.C. §§ 241 and 242.

         As relief, the plaintiff seeks monetary damages and an injunction restricting the defendant from being a judge in the plaintiff's court cases.

         II. STANDARD OF REVIEW

         If an action is filed in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In assessing whether the complaint in this case states a claim on which relief may be granted, the court applies the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim under § 1915(e)(2)(B)(ii)] because the relevant statutory language tracks the language in Rule 12(b)(6)”). “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.”).

         “Pro se complaints are to be held to less stringent standards than formal pleadings drafted by lawyers, and should therefore be liberally construed.” Williams, 631 F.3d at 383 (internal quotation marks and citation omitted). 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”).

         III. DISCUSSION

         The plaintiff alleges that the defendant violated his rights under 18 U.S.C. §§ 241 and 242 when the defendant unlawfully dismissed the plaintiff's previous lawsuits and when he prohibited the plaintiff from filing any more lawsuits as a pauper under state law, until he paid outstanding costs due in connection with previously dismissed lawsuits.

         Assuming for the sake of argument that the plaintiff could ever state a §1983 claim in connection with the adjudication of his lawsuits in state court, neither §§ 241 nor 242 provide for a private right of action. See Davis v. Sarles, 134 F.Supp.3d 223, 228 (D.D.C. 2015) (noting that 18 U.S.C. §§ 241 and 242 are federal criminal statutes and do not create a private right of action); Diaz Aviation Corp. v. Airport Aviation Servs., Inc., 762 F.Supp.2d 388, 393 (D.P.R. 2011) (same); Peabody v. United States, 394 F.2d 175 ...


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