UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANNE E. MITCHELL, 

Plaintiff,

Case No. 14-cv-13185 

vs. HON. GERSHWIN A. DRAIN

MONICA P. NAVARRO, et al., 

Defendants.

_____________________________/

ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED

IN FORMA PAUPERIS [#2] AND DISMISSING ACTION 

Plaintiff, Anne E. Mitchell, filed her original complaint on August 14, 2014, as well as an

application to proceed in forma pauperis. See Dkt. Nos. 1 and 2. Upon review of the application,

the court is persuaded that Plaintiff is unable to pay the fees associated with the filing of her

complaint. Plaintiff’s application to proceed without the prepayment of fees, or in forma pauperis

("IFP"), is hereby GRANTED. See 28 U.S.C. § 1915(a)(1). However, this cause of action is subject

to dismissal because Plaintiff has failed to state a claim upon which relief may be granted. 

Pro se complaints are held to "less stringent standards" than those drafted by lawyers. Haines

v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). Nonetheless, the court is

required by statute to dismiss an in forma pauperis complaint if it (i) is frivolous or malicious; (ii)

fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if

"it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.

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Ct. 1827, 104 L. Ed. 2d 338 (1989). In other words, a complaint is frivolous if "based on an

indisputably meritless legal theory" or "clearly baseless" facts or "a legal interest which clearly does

not exist" or "fantastic or delusional scenarios." Id. at 327-28. A complaint fails to state a claim upon

which relief may be granted if, while viewing the facts in the light most favorable to plaintiff, it is

clear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). 

Plaintiff’s Complaint alleges legal malpractice against various attorneys for purportedly

mishandling a qui tam action wherein Plaintiff was the Relator. See United States of America ex rel.

Anne E. Mitchell v. United Medical Systems (DE), Inc., et al., No. 11-10090. In the qui tam action,

Plaintiff asserted that one of the named defendants was involved in an illegal kickback scheme

involving lithotripsy health services. Plaintiff asserts in the present action that Defendants “acted

negligently by failing to disclose, include, and explain the most substantive material facts by the

Relator in the qui tam complaint . . . .” See Compl., ¶ 4. She further alleges that:

The confusing, misguided, and deficient manner in which the Defendants’

constructed and executed the qui tam complaint, whether by incompetence or on

purpose, resulted in great personal and professional losses for the Plaintiff, and has

perpetuated the unnecessary continuation of serious public endangerment over years

of time. 

Id., ¶ 8. Plaintiff further claims that Defendants “pressured her relentlessly to ‘voluntarily’ dismiss

the complaint . . . .” Id., ¶ 9. Plaintiff seeks $20,000,000.00 in damages. 

Plaintiff fails to state a claim upon which relief may be granted. A qui tam action brought

under the False Claims Act “remains the interest of the United States, even if it chooses not to

intervene in an action brought by a relator.” United States ex rel. Rockefeller v. Westinghouse Elec.

Co., 274 F. Supp. 2d 10, 18-19 (D.D.C. 2003). Plaintiff does not have standing to bring her state

law claim of legal malpractice on behalf of the United States, the real party in interest in an action

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brought under the False Claims Act. See Kusner v. Hepburn, Willcox, Hamilton & Putnam, No. 00-

6313, 2001 U.S. Dist. LEXIS 24209 (E.D. Pa. Nov. 21, 2001) (“[T]he FCA does not give relators

the right to assert common law claims on behalf of the United States.”); United States ex rel. Walsh

v. Eastman Kodak Co., 98 F. Supp.2d 141, 149 (D. Mass 2000) (same). Because Plaintiff cannot

assert common law claims on behalf of the United States, her Complaint fails to state a cause of

action. 

Even if Plaintiff’s state law claim was properly before this Court, her claim would still be

subject to dismissal. In order to state a claim for legal malpractice, Plaintiff must allege: (1) the

existence of an attorney-client relationship; (2) negligent legal representation of the plaintiff; (3) that

the negligence proximately caused an injury; and (4) the fact and extent of the injury alleged. Simko

v. Blake, 448 Mich. 648, 655; 532 N.W. 2d 842 (1995). Proximate cause has two components: (1)

cause-in-fact, and (2) proximate or legal cause. Craig v. Oakwood Hosp., 471 Mich. 67, 86; 684

N.W. 2d 296 (2006). In other words, in order to plausibly allege the causation element of her legal

malpractice claim, Plaintiff was required to allege that “but for [Defendants’] alleged

malpractice,[she] would have been successful in the underlying suit.” Manzo v. Petrella, 261 Mich.

App. 705, 712; 683 N.W. 2d 699 (2004). Plaintiff’s allegations are devoid of plausible facts

demonstrating that, but for Defendants’ purported misconduct, Plaintiff would have been successful

in her qui tam action. 

Accordingly, Plaintiff’s Application to Proceed in Forma Pauperis [#2] is GRANTED.

However, because Plaintiff cannot state a claim upon which relief may be granted, this cause of

action is dismissed. 28 U.S.C. § 1915(e)(2)(B). 

SO ORDERED.

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14-13185 Mitchell v. Navarro, et al

Dated: August 20, 2014

S/Gershwin A. Drain 

Gershwin A. Drain 

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 20, 2014, by electronic and/or ordinary mail. 

/s/Sakne Chami 

Deputy Clerk

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