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 United States District Court
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) The
matter appears to arise from a foreclosure action that
American Tax Funding brought against Green over nine years
ago. (See D.N. 15, PageID # 49) The Court previously
dismissed Green's claims against Nicholson and Ballinger.
(See D.N. 36) William and Valeri Bornstein now move
for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). (D.N. 38) For the reasons set forth
below, the Court will grant the Bornsteins' motion.
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 Fed.Appx. 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 Co Ma Ins.
Agency, 526 Fed.Appx. 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 Fed.Appx.
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
convoluted complaint, Green provides the following to support
his claim against the Bornsteins:
The plaintiff never considered the Bornstein's [sic] . .
. valued customers[s] because neither William [nor] Valeri .
. . came into the store to sign a[n] install agreement . . .
. which would [have required] [t]hree signatures returned two
weeks in advance of [installation]/set up. After telling
Valeri . . . that she needed to get in to the store as soon
as possible . . . Bornstein never called or came in.
Meanwhile my work load filled [and] they never [sent] any
money . . . . Their sign was complete [and] my office
manager [sent] a letter to them . . . . I normally would not
[have done so] without a deposit. They finally [sent] in the
half deposit of the rental of lights and sign, [and] we
immediately applied that money to the sign amount . . . .
With the work load filled and [because] I had a medical need
. . . . I had to make a decision either my life or death or
keep working[.] It was an easy decision, my health and life
come first and as far as the Bornstein's [sic] . . .
they never called, came in, [and] never [sent] any money.
[The] Bornstein's [sic] installation was dropped . . . .
The remainder of the rental was $500 less [than] what was
paid to another business. Bornstein then [used] his law
degree and illegal tactics . . . to get an illegal
judgment . . . [and got] involved with my medical surgery,
which was [a follow-up] surgery [and] . . . was the last day
the insurance would cover the expenses. Because of William
Bornstein I lost my insurance, it was 11 years later when I
received my surgery, [forcing me] to close my store [and
lose] my business.
(D.N. 1, PageID # 2) At the conclusion of his complaint,
Green asserts that the Bornsteins violated his constitutional
rights. (Id., PageID # 3) Aside from the rambling
and disjointed nature of his complaint, Green provides no
context which would allow the Court to conclude that his
constitutional claim is viable. From the face of the
complaint, it is clear that the Bornsteins are private
citizens. A private citizen is not liable for an alleged
constitutional violation unless (1) “the claimed
constitutional deprivation resulted from the exercise of a
right or privilege having its source in state
authority”; and (2) “the private party charged
with the deprivation could be described in all fairness as a
state actor.” Edmonson v. Leesville Concrete Co.,
Inc., 500 U.S. 614, 620 (1991). Green's complaint
and other filings with this Court do not state that either
element is present here. (See D.N. 1; D.N. 40) As
stated above, a pro se complaint must contain either
direct or inferential allegations respecting all the material
elements to sustain a recovery under a viable legal theory.
See Scheid, 859 F.2d at 437. And this Court is not
required to “create a claim which [Green] has not
spelled out in his pleading.” Clark, 518 F.2d
at 1169. By failing to state that either element is present
here, Green has failed to adequately allege a constitutional
violation on the part of the Bornsteins. See generally
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (finding
that a claim is legally frivolous “where none of the
legal points are arguable on their merits” (internal
alterations and quotations omitted)).
any potential state-law claims Green asserts against the
Bornsteins, his complaint does not present the Court with
enough “well-pleaded” factual matter to raise a
reasonable inference that the Bornsteins are liable to Green.
See Iqbal, 556 U.S. at 678. This Court is not
required to entertain a pro se plaintiff's claim
that “defies comprehension” or allegations that
amount to nothing more than “incoherent
ramblings.” Roper, 2010 WL 2670827 at *4 (S.D.
Ohio Apr. 6, 2010), report and recommendation
adopted, 2010 WL 2670697 (S.D. Ohio July 1, 2010).
Although pro se complaints are held to a less
stringent standard, a pro se plaintiff must still
provide each defendant with fair notice of the basis of the
claim. See Jones, 2007 WL 2462184 at *4. Given the
rambling nature of his complaint, Green has failed to provide
the Bornsteins fair notice of any potential state-law claim
he seeks to assert.
most, the Court might infer that Green asserts a contract or
general-injury claim against the Bornsteins. However, even if
the Court were to do so, Green's claims would be barred
by the applicable statute of limitations. Green admits that
the “illegal judgment” referenced in his
complaint is “17 years old.” (D.N. 1, PageID # 3)
And since it is clear that the factual background leading up
to this “illegal judgment” occurred even prior to
that date, Green's claims against the Bornsteins arose at
least 17 years prior to his filing of this action. (See
id., PageID # 2) Under Kentucky law, “[a]n action
for an injury to the rights of plaintiff, not arising on
contract and not otherwise enumerated” and “[a]n
action upon a contract not in writing” “shall be
commenced within five . . . years after the cause of action
accrued.” Ky. Rev. Stat. § 413.120. An action upon
a written contract executed prior to July 15, 2014, shall be
commenced within fifteen years after the cause of action
accrued. § 413.090(2).
the events underlying Green's claims against the
Bornsteins occurred at least seventeen years ago, Green's
claims fail as a matter of law. Thus, not only does
Green's complaint lack the sort of
“well-pleaded” factual detail needed to survive a
motion for judgment on the pleadings, Green ultimately has no
workable theory for holding the Bornsteins liable. See
Iqbal, 556 U.S. at 678. The Court will therefore grant
William and Valeri Bornsteins' motion for judgment on the
Green's response to the Bornsteins' motion does not
alleviate his complaint's defects. In his response, Green
seems to insinuate that William Bornstein initiated a lawsuit
against him despite the fact that the applicable statute of
limitations barred the action. (D.N. 40, PageID # 140) To the
extent that Green states a viable claim, the Court need not
address it. Green's complaint does not mention that
claim. “It is a basic principle that the complaint may
not be amended by [a] brief in opposition to a motion to
dismiss.” Kallick v. United States Nat. Bank
Ass'n, No. 12-106-DLB, 2012 WL 5178152, at *6 (E.D.
Ky. Oct. 18, 2012) (quoting Agnew v. Nat'l Collegiate
Athletic Ass'n, 683 F.3d 328, 348 (7th Cir. 2012)
(alterations in original)). Green's response amounts to
an attempt to amend his complaint outside the procedure for
doing so elucidated by Federal Rule of Civil Procedure 15.
Green may not do so.