United States District Court, N.D. West Virginia, Martinsburg
JAMES B. SWEERIS, Plaintiff,
CARRINGTON MORTGAGE SERVICES, LLC and DOES 1 TO 50, Defendants.
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff James B. Sweeris's
(“Plaintiff”) pro se Motion [ECF No. 2] for Leave
to Proceed In Forma Pauperis. Because Plaintiff seeks to
proceed in forma pauperis, the undersigned must
conduct a preliminary review to determine whether
Plaintiff's pro se Complaint [ECF No. 1] sets forth any
viable claims. See 28 U.S.C. § 1915(e)(2)(B).
Because the undersigned concludes that Plaintiff's
complaint fails to state a claim upon which relief can be
granted, the undersigned recommends that Plaintiff's
complaint be dismissed, without prejudice, and
Plaintiffs' motion to proceed in forma pauperis
be denied as moot.
than the stated amount in controversy, this complaint is
identical to the three previous complaints filed by the
Plaintiff. The subject of Plaintiff's complaint
is a piece of land located at 42 Mopar Avenue, Harpers Ferry,
West Virginia 25425 (“42 Mopar Avenue”). See
generally ECF No. 1. Plaintiff alleges that there is a
“cloud on all title activity” regarding 42 Mopar
Avenue because a mortgage note and a deed of trust have taken
“divergent paths.” Id. at 4-5. Plaintiff
alleges that this divergence of paths occurred as a result of
the mortgage crisis circa 2010. Id. at 4. Plaintiff
alleges that “Defendants' have no legal right,
title, or interest in real property which is the subject
matter of this action . . . .” Id. at 5.
further alleges that Defendant violated his due process and
constitutional rights by following improper mortgage company
procedures. Id. Plaintiff claims that Defendant
improperly serviced the mortgage note and/or deed of trust
through an independent broker/realtor and followed improper
noticing procedures. Id. Plaintiff also alleges
fraud, negligence, and misrepresentation on account of
Defendant's “multiple violations of ignoring proper
loan procedures.” Id.
prayer for relief, Plaintiff states that Defendant has no
legal right, title, or interest in 42 Mopar Avenue.
Id. Plaintiff also seeks monetary and punitive
damages in the amount of $150, 000. Id.
filing a lawsuit in federal court, the plaintiff is required
to pay certain filing fees. The court has the authority to
allow a case to proceed without the prepayment of fees
“by a person who affirms by affidavit that he or she is
unable to pay costs . . . .” L.R. Gen. P. 3.01. The
plaintiff files this affidavit along with her request or
motion for leave to proceed in forma pauperis.
Id. The Supreme Court of the United States has
explained that the purpose of the “federal in forma
pauperis statute . . . is designed to ensure that
indigent litigants have meaningful access to the federal
courts.” Neitzke v. Williams, 490 U.S. 319,
plaintiff seeks to proceed in forma pauperis, the
court conducts a preliminary review of the lawsuit before
allowing the case to proceed. See 28 U.S.C. §
1915(e). This includes cases filed by non-prisoners. See
Michau v. Charleston Cnty., S.C., 434 F.3d 725, 727 (4th
Cir. 2006) (holding that the district court did not abuse its
discretion when it dismissed the non-prisoner complaints
under 28 U.S.C. § 1915(e)(2)(B)). The court must dismiss
a case at any time if the court determines that the complaint
is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B). A case is often dismissed
sua sponte (i.e., on the court's own decision)
before the defendant is notified of the case “so as to
spare prospective defendants the inconvenience and expense of
answering such complaints.” Neitzke, 490 U.S.
at 324. When reviewing pro se complaints, the Court must
construe them liberally. See Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
stated above, under the federal in forma pauperis
statute, the court may dismiss a case if the complaint is
frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is
frivolous if it is without “an arguable basis either in
law or fact.” Neitzke, 490 U.S. at 325. A
complaint filed in forma pauperis which fails to
state a claim under Federal Rule of Civil Procedure 12(b)(6)
is not automatically frivolous. See id. at 328.
Cases should only be dismissed as frivolous when the legal
theories are “indisputably meritless, ” or where
the claims rely on factual allegations which are
“clearly baseless.” Id. at 327; see
also Denton v. Hernandez, 504 U.S. 25, 32
(1992). This includes claims where the plaintiff has little
or no chance of success. See Estelle v. Gamble, 429
U.S. 97, 106 (1976).
federal in forma pauperis statute allows a court to
sua sponte dismiss a complaint that “fails to
state a claim on which relief may be granted.” 28
U.S.C. § 1915(e)(2)(B)(ii). Federal Rule of Civil
Procedure 8(a)(2) “requires only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). Although a complaint
need not assert “detailed factual allegations, ”
it must contain “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Id. at 555
(citations omitted). To survive dismissal for failure to
state a claim, the complaint must raise a right to relief
that is more than speculative. Id. In other words,
the complaint must contain allegations that are
“plausible” on their face, rather than merely
“conceivable.” Id. at 555, 570.
Therefore, in order for a complaint to survive dismissal for
failure to state a claim, the plaintiff must “allege
facts sufficient to state all the elements of [his or] her
claim.” Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing
Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir.2002)); Iodice v. United States, 289 F.3d 279,
281 (4th Cir. 2002). A “claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Thus, a well-pleaded
complaint must offer more than “a sheer possibility
that a defendant has acted unlawfully” in order to meet
the plausibility standard and survive dismissal for failure
to state a claim. Id.; see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).