United States District Court, M.D. Tennessee, Nashville Division
WALLACE C. EVANS, Plaintiff,
CHASE, et al., Defendants.
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court upon a “Motion to Strike
Plaintiff's Amended Complaint or in the Alternative
Motion to Dismiss Amended Complaint, ” filed by
Defendant PNC Bank, N.A. (“PNC”) on June 6, 2017,
which contends that Plaintiff's Amended Complaint should
be stricken or dismissed because it fails to state a claim
upon which relief may be granted. Docket No. 31. PNC has also
filed a Supporting Memorandum of Law. Docket No. 32.
Plaintiff, who is proceeding pro se, has not responded.
argues that the Amended Complaint (Docket No. 30) fails under
the standard of Fed.R.Civ.P. 12(b)(6) because it
“contains no more than unsupported conclusions that PNC
somehow violated his Thirteenth and Fourteenth Amendment
rights because Prudential Bank and Trust Company promised him
a loan but ‘no loan was ever made' by PNC.”
Docket No. 32, p. 2-3. PNC asserts that the Amended Complaint
does not comply with Fed.R.Civ.P. 8(a)(2) and is insufficient
to establish a claim upon which relief can be granted, even
under the liberal construction afforded to pro se pleadings.
Id. at 3.
Motions to Dismiss Under Fed.R.Civ.P. 12(b)(6)
withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007). The Supreme Court has clarified the
Twombly standard, stating that “[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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. A
complaint that pleads facts “‘merely consistent
with' defendant's liability . . . ‘stops short
of the line between possibility and plausibility' of
‘entitlement to relief.'” Id.,
quoting Twombly, 550 U.S. at 557 (internal brackets
ruling on a defendant's motion to dismiss, the court must
“construe the complaint liberally in the
plaintiff's favor and accept as true all factual
allegations and permissible inferences therein.”
Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th
Cir. 1994). The court should allow “a well-pleaded
complaint [to] proceed even if it strikes a savvy judge that
actual proof of those facts is improbable.”
Twombly, 550 U.S. at 556. However, a
“plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions.”
Id. at 555. “‘[A] legal conclusion
couched as a factual allegation' need not be accepted as
true on a motion to dismiss, ” Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)
(citation omitted), and mere recitation of the elements of a
cause of action “or an “unadorned,
the-defendant-unlawfully-harmed-me accusation” will not
do, Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 555. While the court must accept “as true all
non-conclusory allegations in the complaint, ”
Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003,
1005 (6th Cir. 2009), it does not have to accept unsupported
legal conclusions, Iqbal, 556 U.S. at 678.
“The Plaintiff's failure to respond to the
Defendant's motion to dismiss does not alter the standard
of review, nor does it allow for dismissal without
undertaking such review.” Powers v. U.S. Bank,
N.A., No. 3:13-cv-01334, 2014 U.S. Dist. LEXIS 91813 at
*2 (M.D. Tenn. July 7, 2014), citing Carver v.
Bunch, 946 F.2d 451 (6th Cir. 1991).
se complaints are to be held to less stringent standards than
formal pleadings drafted by lawyers, and should therefore be
liberally construed.” Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011) (internal quotation marks and
citation omitted). Pro se litigants, however, are not exempt
from the requirements of 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 a 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).
Plaintiff's Allegations Against PNC
entirety of Plaintiff's allegations against PNC are as
Reference: PNC Bank account number 15038452xxxxxxxx
1. The cause of action in this matter is breach of contract.
There is a deed of trust
A loan was promised to the Plaintiff by (Prudential Bank and
Trust Company) the bank that ...