United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION AND DENYING PLAINTIFF'S MOTION TO AMEND
T. Fowlkes, Jr. United States District Judge.
the Court is the Report and Recommendation entered by the
Magistrate Judge in the above-styled case. (ECF No. 6.) On
July 3, 2017, Plaintiff filed his pro se Complaint
(titled, “Notice of Appeal”), accompanied by his
pro se Motion seeking leave to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The matter was referred
to the Magistrate Judge for management of all pretrial
matters. On July 6, 2017, the Magistrate Judge issued a
Report and Recommendation suggesting that the information in
Plaintiffs in forma pauperis
(“IFP') affidavit satisfies his burden of
demonstrating that he is unable to pay the civil filing fee
but that this Court should dismiss Plaintiffs Complaint for
failure to state a claim on which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (ECF No. 6,
2-4.) The Magistrate Judge also recommended that this Court,
pursuant to 28 U.S.C. § 1915(a)(3), certify that an
IFP appeal by Plaintiff would not be taken in good
faith and, thus, may not be taken. (Id. at 5.) On
July 19, 2017, Plaintiff filed a document titled
“Letter of Dispute and Request for Reconsideration for
In Forma Pauperis”, which the Court construes
as Plaintiffs Objections to the Magistrate Judge's Report
and Recommendation. (ECF No. 7.) Plaintiff filed his Amended
Complaint, on August 24, 2017, which the Court also construes
as his Motion to Amend Complaint. (ECF No. 8.)
FINDINGS OF FACT
in her Report and Recommendation, is the Magistrate
Judge's determination that proposed findings of fact are
not necessary in this case. Compare Fed. R. Civ. P.
72(b)(1), with ECF No. 6. Rather, the Magistrate
Judge issued her Report and Recommendation based on
Plaintiffs original Complaint and Motion seeking leave to
proceed IFP, the factual circumstances surrounding
both, and the applicable law. The Court, for purposes of its
analysis, similarly incorporates the same as well as
Plaintiffs “Letter of Dispute and Request for
Reconsideration for In Forma Pauperis”, (ECF
No. 7), and Plaintiffs Amended Complaint. (ECF No. 8.)
to 28 U.S.C. § 636(b), magistrate judges may hear and
determine any pretrial matter pending before the Court,
except various dispositive motions. 28 U.S.C. §
636(b)(1)(A). Upon hearing a pending matter, “the
magistrate judge must enter a recommended disposition,
including, if appropriate, proposed findings of fact.”
Fed.R.Civ.P. 72(b)(1); see also Baker v. Peterson,
67 F. App'x 308, 310 (6th Cir. 2003). The district court
may accept, reject, or modify the proposed findings or
recommendations of the Magistrate Judge. 28 U.S.C. §
party who disagrees with a magistrate's proposed findings
and recommendation may file written objections to the report
and recommendation. Fed.R.Civ.P. 72(b)(2). The standard of
review that is applied by the district court depends on the
nature of the matter considered by the magistrate judge.
See Fed R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to.”); Baker, 67 F. App'x at 310
(noting that a “district court normally applies a
‘clearly erroneous or contrary to law' standard of
review for non-dispositive preliminary measures” and a
de novo standard for review of dispositive motions).
A district judge should adopt the findings and rulings of the
magistrate judge to which no specific objection is filed.
Brown, 47 F.Supp.3d at 674.
to Local Rule 4.1, service will not issue in a pro
se case where the pro se plaintiff has been
granted leave to proceed IFP until the complaint has
been screened under 28 U.S.C. § 1915(e)(2)(B). LR
4.1(b). Courts must screen IFP complaints and
dismiss any complaint, or portion thereof, if the allegation
of poverty is untrue or if the action (i) is frivolous or
malicious, (ii) fails to state a claim on which relief may be
granted, or (iii) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
To state a claim, courts hold as follows:
[A] complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. A
complaint must have enough facts to state a claim to relief
that is plausible on its face. 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.
Davidson v. Fed. Bureau of Prisons, No. 17-5429,
2017 U.S. App. LEXIS 24272, at *6 (6th Cir. Nov. 29, 2017).
must also remain conscious that pro se pleadings,
though not free from basic pleading requirements, are
“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) (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)).
analyzing Plaintiff's original Complaint, the Magistrate
Judge recommends that this Court dismiss Plaintiff's
original Complaint for failure to provide “a short
plain statement of the claim showing that the pleader is
entitled to relief pursuant to Fed.R.Civ.P. 8(a)(2) and
failure to demand relief as required by Fed.R.Civ.P. 8(a)(3).
Plaintiff did not lodge objections to either finding. Upon
review of Plaintiffs Complaint, this Court agrees with the
Magistrate Judge's conclusion that Plaintiffs Complaint
should be dismissed for failure to comply with the pleading
requirements of Fed.R.Civ.P. 8.
Magistrate Judge also recommends that this Court certify,
pursuant to 28 U.S.C. § 1915(a)(3), that Plaintiff may
not appeal IFP because such an appeal would not be
taken in good faith. (ECF No. 6, 5.) Plaintiff did not object
to the recommendation. Under 28 U.S.C. § 1915(a)(3),
“An appeal may not be taken in forma pauperis
if the trial court certifies in writing that it is not taken
in good faith.” 28 U.S.C. § 1915(a)(3). “The
good faith standard is an objective one” and considers
whether the litigant seeks appellate review of any
nonfrivolous issue. Beard v. Memphis, TN Crim. &
Judicial Sys., No. 17-2184-STA-cgc, 2017 U.S. Dist.
LEXIS 100175, at *8 (W.D. Tenn. June 16, 2017). Additionally,
courts hold that it would be inconsistent for a ...