United States District Court, E.D. Tennessee
SHERRY J. MELANCON and CARLYLE J. MELANCON, Plaintiffs,
KENNETH WEITZEL, et al., Defendants.
REPORT AND RECOMMENDATION
case comes before the undersigned pursuant to 28 U.S.C.
§ 636(b) and the Rules of this Court for consideration
of Defendant Weitzel's Motion and Application To Proceed
In Forma Pauperis, which has been filed in the above
case on May 30, 2019 [Doc. 2] and the Defendant Weitzel's
Notice of Removal [Doc. 1] also filed on May 30, 2019. The
undersigned files this Report and Recommendation for the
District Judge to whom this case is assigned. For the reasons
more fully stated below, the Court finds that the Defendant
should be allowed to file his Notice of Removal without
prepayment of costs, but the Court
RECOMMENDS that the Notice of Removal be
DISMISSED for jurisdictional deficiencies
and pursuant to 28 U.S.C. § 1915(e), and that the case
be remanded to state court.
FILINGS AND ALLEGATIONS
Defendant has filed an application to proceed in forma
pauperis, with the required detailing of his financial
condition. The application demonstrates that the Defendant
has little income and few assets.
Notice of Removal, the Defendant alleges that the Plaintiffs
filed a Detainer action against him in Loudon County General
Sessions Court to recover possession of real property
allegedly owned by Plaintiffs but occupied by Defendant.
Defendant claims that no landlord/tenant relationship exists
between Plaintiffs and himself.
courts are courts of limited jurisdiction. Congress has
conferred upon this Court, and other federal courts, the
jurisdiction to hear only two types of civil cases: those
arising under the United States Constitution and the laws and
treaties of the United States, see 28 U.S.C. §
1331, and those cases in which the amount in controversy
exceeds $75, 000.00 and the parties are diverse, see
28 U.S.C. § 1332.
underlying state court action is a Detainer for possession of
real property. This is a state law claim. Moreover, any
argument in support of diversity jurisdiction is defeated by
the fact that the Plaintiffs and Defendant reside in
Tennessee. [Doc. 1-1].
the Court finds the Plaintiff has failed to demonstrate any
grounds for federal jurisdiction in this case.
Indigency and Failure to State a Claim
addition to federal jurisdiction standards, applications to
proceed in forma pauperis are governed by 28 U.S.C.
§ 1915. The purpose of 28 U.S.C. § 1915 is to
ensure that indigent litigants have meaningful access to the
courts. Adkins v. W.I. DuPont de Nemours & Co.,
335 U.S. 331, 342 (1948); Neitzke v. Williams, 490
U.S. 319, 324, 109 S.Ct. 1827 (1989). To accomplish this end,
a court must evaluate the litigant's indigence, but
notwithstanding indigence, a court may sua sponte
dismiss a matter under 28 U.S.C. § 1915 if the
litigation is frivolous and malicious or fails to state a
claim upon which relief can be granted.
Court will address the indigence and merits components of 28
U.S.C. § 1915 in turn.
1915 allows a litigant to commence a civil or criminal action
in federal court without paying the administrative costs of
the lawsuit. Denton v. Hernandez, 504 U.S. 25
(1992). The court's review of an in forma
pauperis application is normally based solely on the
affidavit of indigence. See Gibson v. R.G. Smith
Co., 915 F.2d 260, 262-63 (6th Cir. 1990). The threshold
requirement which must be met in order to proceed in
forma pauperis is that the petitioner show, by
affidavit, the inability to pay court fees and costs. 28
U.S.C. § 1915(a). However, one need not be absolutely
destitute to enjoy the benefit of proceeding in forma
pauperis. Adkins, 335 U.S. at 342. An affidavit