United States District Court, W.D. Kentucky, Louisville Division
Rebecca Grady Jennings, District Judge.
se Plaintiff Mike Howard Lee filed the instant action.
Because Plaintiff is proceeding in forma pauperis
under 28 U.S.C. § 1915, the Court must undertake a
preliminary review of the complaint. See 28 U.S.C.
§ 1915(e); McGore v. Wrigglesworth, 114 F.3d
601 (6th Cir. 1997), overruled on other grounds by Jones
v. Bock, 549 U.S. 199 (2007). For the following reasons,
the action will be dismissed.
SUMMARY OF CLAIMS
filed his complaint on a civil complaint form. He names as
Defendants Willie M. Lee, Christian Yvonne Murphy, Judge Gina
K. Calvert, and attorney Wendy Wagner.
complaint form, Plaintiff indicates that he is bringing this
action under federal-question jurisdiction. In the portion of
the complaint form in which to state the basis for
federal-question jurisdiction, Plaintiff states:
“Filing of false reports, 1st and
2nd Amendment violations.” In the
statement-of-the-claim portion of the form, Plaintiff states:
(1) Willie M. Lee and Christian Yvonne Murphy filed false
report that got me arrested and jailed knowing that I am a
100% disabled veteran and a severe diabetic. (2) on
26th of November Judge Gina Kay Calvert violated
my First and Second Amendment right blatently. (3) Wendy
Wagner took money $1260.00 from me and knew that the
statu[t]e of limitations had already expired.
relief section of the complaint, Plaintiff states: “I
almost died in the county jail see LMDC records. I request
relief for pay attorneys $3260.00.”
Plaintiff is proceeding in forma pauperis, this
Court must review the instant action. See 28 U.S.C.
§ 1915(e)(2); McGore v. Wrigglesworth, 114 F.3d
at 608. Upon review, this Court must dismiss a case at any
time if the Court determines that the action is
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). A claim is legally frivolous when it
lacks an arguable basis either in law or in fact. Neitzke
v. Williams, 490 U.S. 319, 325 (1989). The Court may,
therefore, dismiss a claim as frivolous where it is based on
an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327.
determining whether a plaintiff has stated a claim upon which
relief can be granted, the Court must construe the complaint
in a light most favorable to the plaintiff and accept all of
the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). A
complaint, or portion thereof, should be dismissed for
failure to state a claim upon which relief may be granted
“only if it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to relief.” Brown v. Bargery, 207
F.3d 863, 867 (6th Cir. 2000). While a reviewing court must
liberally construe pro se pleadings, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to
avoid dismissal, a complaint must include “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
courts are to hold pro se pleadings “to less
stringent standards than formal pleadings drafted by lawyers,
” Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam), this duty to be less stringent “does not
require us to conjure up unpled allegations, ”
McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat'l
Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.
1975). To command otherwise would require courts “to
explore exhaustively all potential claims of a pro
se plaintiff, [and] would also transform the district
court from its legitimate advisory role to the improper role
of an advocate seeking out the strongest arguments and most
successful strategies for a party.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
the factual allegations in the complaint are scant, the Court
discerns that Defendants Lee and Murphy appear to be private
citizens who filed a report which resulted in Plaintiff being
arrested and jailed; that Defendant Judge Calvert is a
state-court judge; and that Defendant Wagner is an attorney
in private practice who, according to the complaint, took
money from Plaintiff even though she knew that the statute of
limitations had expired. Additionally, the complaint
references the filing of false reports and the First and
Sixth Circuit has stated that “it is unnecessary and
needlessly redundant to imply a cause of action arising
directly under the Constitution where Congress has already
provided a statutory remedy of equal effectiveness through
which the plaintiff could have vindicated [his]
constitutional rights.” Thomas v. Shipka, 818
F.2d 496, 500 (6th Cir. 1987), vacated on other
grounds, 488 U.S. 1036 (1989). Therefore, the Court
construes Plaintiff's claims under the First and Second
Amendments as being brought under 42 U.S.C. § 1983.
Sanders v. Prentice-Hall Corp., 178 F.3d
1296 (6th Cir. 1999); Henderson v. Corr. Corp. of
Am., 918 F.Supp. 204, 208 (E.D. Tenn. 1996).
order to state a claim under § 1983, Plaintiff must
allege both a violation of a right or rights secured by the
Constitution and laws of the United States and that the
alleged deprivation was committed by a person acting under
color of state law. See West v. Atkins, 487 U.S. 42,