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Green v. Bornstein

United States District Court, W.D. Kentucky, Louisville Division

October 26, 2017

MICHAEL J. GREEN, Plaintiff,
v.
WILLIAM S. BORNSTEIN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge

         Plaintiff 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.

         I. Standard

         Although 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).

         This 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.

         Pro 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).

         II. Discussion

         a. Ballinger's Motion

         In his 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.

         Green's 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 ...


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