United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
Leo I.
Brisbois, United States Magistrate Judge
This
matter comes before the undersigned United States Magistrate
Judge upon the routine supervision of the cases that pend
before the Court, pursuant to a general assignment made in
accordance with the provisions of 28 U.S.C. § 636; and
upon Plaintiff Craig Johnson's (“Plaintiff”)
application seeking leave to proceed in forma
pauperis (“IFP”) under 28 U.S.C. §
1915. [Docket No. 2]. For the reasons discussed below, it is
recommended that Johnson's IFP application be denied and
that this action be dismissed.
Plaintiff
Craig Johnson[1] did not pay the filing fee for this
matter, but instead applied for in forma pauperis
(“IFP”) status. See Docket No. 2. That
IFP application is now before the Court and must be
considered before any other action may be taken in this
matter.
After
review of the IFP application, this Court concludes that
Johnson qualifies financially for IFP status. That said, an
IFP application will be denied, and the action will be
dismissed, when an IFP applicant has filed a complaint that
fails to state a cause of action on which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii);
Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996)
(per curiam); Carter v. Schafer, 273 Fed. App'x
581, 582 (8th Cir. 2008) (per curiam) (“[C]ontrary to
plaintiffs' arguments on appeal, the provisions of 28
U.S.C. § 1915(e) apply to all persons proceeding IFP and
are not limited to prisoner suits, and the provisions allow
dismissal without service.”). In reviewing whether a
complaint states a claim on which relief may be granted, this
Court must accept as true all of the factual allegations in
the complaint and draw all reasonable inferences in the
plaintiff's favor. Aten v. Scottsdale Ins. Co.,
511 F.3d 818, 820 (8th Cir. 2008). Although the factual
allegations in the complaint need not be detailed, they must
be sufficient to “raise a right to relief above the
speculative level . . . .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The complaint must
“state a claim to relief that is plausible on its
face.” Id. at 570. In assessing the
sufficiency of the complaint, the court may disregard legal
conclusions that are couched as factual allegations. See
Ashcroft v. Iqbal, 556 U.S. 662 (2009). Pro se
complaints are to be construed liberally, but they still must
allege sufficient facts to support the claims advanced.
See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004).
Johnson's
short complaint is nearly illegible and almost impossible to
follow. It appears that Johnson believes an official of the
City of Crosslake harassed him on account of his hearing
loss. Even accepting this as true, however, Johnson does not
plausibly or adequately allege that he was discriminated
against on account of a disability or that he was denied the
benefit of a public accommodation on account of his
disability, as required to set forth a claim under the
Americans with Disabilities Act, 42 U.S.C. § 12101 et
seq. No other federal question is even remotely apparent from
Johnson's Complaint (he does not mention a formal cause
of action), and the Court lacks original jurisdiction over
any claims brought by Johnson under state law, as he does not
allege a basis for this Court to conclude that diversity of
citizenship exists between the parties. See 28
U.S.C. § 1332. And even if Johnson had stated a
viable claim for relief (to be clear, he has not), it is
doubtful whether this action is even justiciable, as there
appears to be no live controversy between the parties;
Johnson does not include a demand for relief in his
complaint, as required by Fed.R.Civ.P. 8(a)(3), alleging
instead that he “[doesn't] care the FBI took
it.” (Compl., [Docket No. 1], at 4).
For all
those reasons, it is hereby recommended that this action be
dismissed pursuant to § 1915(e)(2)(B)(ii). Because it is
not impossible that Johnson could amend his complaint to
state a claim on which relief may be granted, this Court
recommends that the dismissal be without prejudice.
That said, any subsequent action initiated by Johnson in this
District will be subject to the filing restrictions already
entered against him in Johnson v. City of Crosslake,
No. 16-CV-2514 (DWF/LIB) (D. Minn. Sept. 20, 2016).
RECOMMENDATION
Based
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED THAT:
1. This action be SUMMARILY DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and
2. Johnson's application to proceed in forma
pauperis, [Docket No. 2], be DENIED.
NOTICE
Filing
Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Under
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. LR 72.2(b)(2). All
objections and responses must comply with the word or line
limits set forth in LR 72.2(c).
Under
Advisement Dated: This Report and Recommendation will be
considered under advisement 14 days from the date of its
filing. If timely objections are filed, this Report and
Recommendation will be considered under advisement from the
earlier of: (1) 14 days ...