United States District Court, W.D. Kentucky, Louisville Division
MICHAEL J. GREEN, Plaintiff,
WILLIAM S. BORNSTEIN, et al., Defendants.
MEMORANDUM OPINION AND ORDER
J. Hale, Judge
Michael Green brought this pro se action against
Defendants William and Valeri Bornstein, James Nicholson,
James Ballinger, and American Tax Funding, alleging
violations of his constitutional rights. (Docket No. 1)
Ballinger has moved to dismiss Green's claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). (D.N. 15) The Court
will construe Ballinger's motion as one for judgment on
the pleadings, however, as he previously filed an answer to
Green's complaint. (See D.N. 6) Nicholson also
seeks judgment on the pleadings. (D.N. 26) For the reasons
set forth below, the Court will grant both motions.
presented as a motion to dismiss for failure to state a
claim, Ballinger's motion was filed after he answered the
complaint. (See D.N. 6; D.N. 15) Rule 12(b) provides
that a motion asserting failure to state a claim “must
be made before pleading if a responsive pleading is
allowed.” Fed.R.Civ.P. 12(b). Ballinger's motion is
thus properly construed as a motion for judgment on the
pleadings pursuant to Rule 12(c). See Satkowiak v. Bay
Cty. Sheriff's Dep't, 47 F. App'x 376, 377
n.1 (6th Cir. 2002).
distinction is of little practical effect, however. A motion
for judgment on the pleadings pursuant to Rule 12(c) is
subject to the same standard as a motion to dismiss for
failure to state a claim under Rule 12(b)(6). CoMa Ins.
Agency, Inc. v. Safeco Ins. Co., 526 F. App'x 465,
467 (6th Cir. 2013) (citing Wee Care Child Ctr., Inc. v.
Lumpkin, 680 F.3d 841, 846 (6th Cir. 2012)). Thus, to
survive a motion for judgment on the pleadings, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). To meet this standard, a plaintiff
must “plead factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A complaint
whose “well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct”
does not satisfy the Federal Rules' pleading requirements
and will not withstand a motion for judgment on the
pleadings. Id. at 679; see CoMa Ins.
Agency, 526 F. App'x at 467.
se pleadings are held to a less stringent standard than
formal pleadings drafted by lawyers. Haines v.
Kerner, 404 U.S. 519, 519 (1972). Yet “the lenient
treatment generally accorded to pro se litigants has
limits.” Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996). For example, “the less stringent
standard for pro se plaintiffs does not compel
courts to conjure up unpleaded facts to support conclusory
allegations.” Leisure v. Hogan, 21 F.
App'x 277, 278 (6th Cir. 2001). Additionally, a court
cannot “create a claim which [a plaintiff] has not
spelled out in his pleading.” Clark v. Nat'l
Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). A pro se complaint must still contain either
direct or inferential allegations respecting all the material
elements to sustain a recovery under some viable legal
theory. See Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.2d 434, 437 (6th Cir. 1988). A failure to
identify a right, privilege, or immunity that was violated
warrants dismissal of the action. See Codd v. Brown,
949 F.2d 879, 882 (6th Cir. 1991). Ultimately, “[t]he
Court's duty to construe a pro se complaint
liberally does not absolve a plaintiff of the duty to comply
with the Federal Rules of Civil Procedure by providing each
defendant with fair notice of the basis of the claim.”
Jones v. Cabinet for Families & Children, No.
3:07CV-11-S, 2007 WL 2462184, at *4 (W.D. Ky. Aug. 29, 2007)
(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514 (2002)). Courts are not required to entertain a pro
se plaintiff's claim that “defies
comprehension” or allegations that amount to nothing
more than “incoherent ramblings.”
Roper v. Ford Motor Co., No. 1:09-cv-427, 2010 WL
2670827, at *4 (S.D. Ohio Apr. 6, 2010), report and
recommendation adopted, 2010 WL 2670697 (S.D. Ohio July
1, 2010) (internal citations omitted).
convoluted complaint, Green provides the following to support
his claim against Ballinger:
James D. Ballinger . . . applied the Bornstein case to the
foreclosure case[.] The Bornstein [case] was [seventeen]
years old[, with a fifteen] year limitations. Ballinger has
put [an]other case[, ] which is clearly wrong. Ballinger
started all this turmoil that I have had to go through ever
since he filed the foreclosure. Ballinger very clearly
fil[ed] false creditors trying to overwhelm the defendants
[and] force a submission.
(D.N. 1, PageID # 3) In the entire complaint, however, Green
provides no context which would allow the Court to identify
what “foreclosure case” Green is referring to,
let alone how Ballinger is related to the case. Additionally,
Green refers to the “Bornstein case” only one
other time in the complaint, explaining: “Bornstein
then us[ed] his law  degree and illegal tactics . . . to
get an illegal ju[dg]ment.” (Id., PageID # 2)
Again, the Court cannot identify how the “Bornstein
case” relates to Ballinger or how it supports
Green's claim. Even when viewed under the less stringent
standard afforded to pro se litigants, the complaint
does not state a claim against Ballinger upon which relief
may be granted. See Iqbal, 556 U.S. at 678.
subsequent filings are of little help in clarifying his claim
against Ballinger. In one such filing, Green states:
[Ballinger] [a]llowed Bornstein to proceed to take [Green] to
court [eighteen] years after a [fifteen] year [l]imitation .
. . . After  Ballinger avoiled [sic] the plaintiff['s
motions] to have these creditors dismissed[.]
(D.N. 9, PageID # 28) This statement, however, does not
present the court with enough “well- pleaded”
factual matter to raise a reasonable inference that Ballinger
is liable to Green. Again, although pro se
complaints are held to a lesser stringent standard, a pro
se complaint must still contain either direct or
inferential allegations respecting all the material ...