United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION
PHAM UNITED STATES MAGISTRATE JUDGE.
Michaela Durham filed a pro se complaint and a
motion to proceed in forma pauperis on April 18,
2019. (ECF Nos. 1 & 2.) This court granted the motion to
proceed in forma pauperis on April 23,
2019. (ECF No. 6.) Pursuant to Administrative Order No.
2013-05, this case has been referred to the United States
magistrate judge for management and for all pretrial matters
for determination and/or report and recommendation as
appropriate. For the following reasons, the undersigned
recommends that the complaint be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject
PROPOSED FINDINGS OF FACT
complaint indicates that she is bringing a civil case based
on federal question jurisdiction. (ECF No. 1 at 2.) In the
space designated for listing the specific federal statutes,
federal treaties, or provisions of the United States
Constitution that are at issue, Durham states: “The
plaintiff's civil rights are being violated and
discriminatory/retaliatory tactics are being used to evict
the plaintiff.” (Id. at 3.) Durham's
statement of the claim reads in its entirety: “The
plaintiff which was the defendant in the civil courts, the
matter of eviction was heard in the lower courts, and the
case the civil rights violation was not allowed to be
addressed, so the plaintiff is filing the matter with the
Federal Courts for help in ruling.” (Id. at
4.) Durham requests “a fair trial to be set to hear the
PROPOSED CONCLUSIONS OF LAW
Standard of Review
court is required to screen in forma pauperis
complaints and must dismiss any complaint, or any portion
thereof, 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)(B)(i-iii).
avoid dismissal for failure to state a claim, “‘a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.'” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)); see also Fed. R. Civ. P.
12(b)(6). “A claim is plausible on its face if the
‘plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Ctr. for
Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365,
369 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at
678). Without factual allegations in support, mere legal
conclusions are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 679.
se complaints are held to less stringent standards than
formal pleadings drafted by lawyers, and are thus liberally
construed. Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011). Even so, pro so litigants must
adhere to the Federal Rules of Civil Procedure, see Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989), and the
court cannot create a claim that has not been spelled out in
a pleading. See Brown v. Matauszak, 415 Fed.Appx.
608, 613 (6th Cir. 2011); Payne v. Sec'y of
Treas., 73 Fed.Appx. 836, 837 (6th Cir. 2003).
Failure to State a Claim
complaint fails to identify any specific statute,
constitutional provision, or any other federal cause of
action as a basis for her claims. And her complaint is wholly
lacking in details or factual support from which the court
could reasonably infer that the defendant is liable for some
alleged misconduct. Ctr. for Bio-Ethical Reform,
Inc., 648 F.3d at 369. Rather, the complaint contains
only “a blanket assertion of entitlement to
relief.” See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 n.3 (2007). Because such conclusory allegations
are insufficient to state a plausible claim for relief, the
complaint must be dismissed. See 28 U.S.C. §
1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 679.
Subject Matter Jurisdiction
complaint should also be dismissed for lack of subject matter
jurisdiction. At any time and of its own volition, a district
court may examine whether a complaint lacks subject matter
jurisdiction. See Dietrich v. Bell, Inc., 554
Fed.Appx. 418, 421 (6th Cir. 2014); Answers in Genesis of
Ky., Inc. v. Creation Ministries Int'l, Ltd., 556
F.3d 459, 465 (6th Cir. 2009) (“[F]ederal courts have a
duty to consider their subject matter jurisdiction in regard
to every case and may raise the issue sua
sponte.”). This court appears to lack diversity
jurisdiction because there is no indication that the parties
are citizens of different states and because Durham seeks
only equitable relief. See 28 U.S.C. §
1332(a)(1). As discussed above, no federal question is
apparent from the face of the complaint. See Kitzmann v.
Local 6-19M Graphic Comms. Conf. of Intern. Brothers of
Teamsters, 415 Fed.Appx. 714, 716 (6th Cir. 2011).
Therefore, this court lacks federal-question jurisdiction.
Moreover, because there appears to be no basis for asserting
original jurisdiction over this case, supplemental
jurisdiction would likewise be inappropriate. See 28
U.S.C. § 1367(a).