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Lee v. Lee

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

July 12, 2019



          Rebecca Grady Jennings, District Judge.

         Pro 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.


         Plaintiff 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.

         On the 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.

         In the 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.”

         II. ANALYSIS

         Because 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.

         When 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).

         Although 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).

         Although 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 Second Amendments.

         The 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).

         In 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, 48 ...

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