UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

PATRICIA L. WIESZCIECINSKI,

CASE NO. 14-CV-12728

Plaintiff,

DISTRICT JUDGE THOMAS L. LUDINGTON

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

DAVE LaBRENZ and

KAY COOPER,

Defendants.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that the case be sua sponte

DISMISSED because Plaintiff has failed to state a claim upon which relief can be granted.

II. REPORT

A. Introduction

On July 11, 2014, Plaintiff Patricia Wieszciecinski filed this pro se action alleging a

“wrongful eviction (1) loss of all real property” claim based on the following allegations:

His tenant in #8 is making it hard to live there. She is older and on SSI sheltering (3)

homeless adults (1) with child. The husband has flattened (2) of my tires and Kay

broke (3) screens. Also sold me a TV $50.00 that belongs to Dave LaBrenz stoled

my grill Noisy and filthy drugs involved.

(Doc. 1 at 3.) Plaintiff also asks, “Get me a safe place far away from Mr. LaBrenz.” (Doc. 1 at 2.) 

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Plaintiff’s complaint alleges this Court’s jurisdiction based on the U.S. Government’s

participation as a Plaintiff, cites “Disability Acts” as the civil statute under which she is filing,

checks the box for a class action, and indicates that Plaintiff and Defendants are citizens of this

State, i.e., Michigan. (Doc. 1 at 6.) 

Plaintiff’s application to proceed without prepayment of fees was granted on July 25, 2014,

(Doc. 5), pursuant to the in forma pauperis (“IFP”) statute, 28 U.S.C. § 1915(a)(1), and the case

was referred to the undersigned magistrate judge for pretrial proceedings on July 23, 2014. (Doc.

4.) Despite the Court’s order that IFP status would be granted but that service of process would not

be ordered until after screening has been completed, (Doc. 5), summonses were issued and

Defendants were served. (Docs. 7, 8, 9, 10.) Defendant LaBrenz filed a response to the complaint

on August 12, 2014. (Doc. 12.) After screening the pro se complaint pursuant to 28 U.S.C. §

1915(e)(2)(B), I find that the case is ready for report and recommendation.

B. Screening Procedure and Standards

In enacting the original IFP statute, Congress recognized that “a litigant whose filing fees

and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive

to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S.

25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). In 1996, Congress enacted

a screening procedure, see 28 U.S.C. § 1915(e)(2)(B), which requires that the court review all

complaints where the plaintiff is proceeding IFP and that it sua sponte dismiss a case before

service of process if it determines that the action is frivolous or 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. 

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When a plaintiff is proceeding without the assistance of counsel, the court is required to

liberally construe the document and hold it to a less stringent standard than a similar pleading

drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star Bank, 190 F.3d

708, 715 (6th Cir. 1999). Federal Rule of Civil Procedure 8(a) sets forth the basic federal pleading

requirement that a complaint “shall contain . . . a short and plain statement of the claim showing

that the pleader is entitled to relief.” “Rule 8 requires only that the complaint give the defendant

fair notice of the claim and its supporting facts.” E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d

850, 854 (6th Cir. 2001). Despite this relatively low threshold, a complaint must nevertheless

contain more than legal labels, conclusions, and a recitation of the elements of a cause of action;

it must also contain “enough facts to state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Federal courts are under an independent obligation to examine their own jurisdiction. U.S.

v. Hays, 515 U.S. 737, 742 (1995). Rule 12(h)(3) of the Federal Rules of Civil Procedure provides

that if a court “determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.” Fed. R. Civ. P. 12(h)(3).

There are two ways this Court can obtain jurisdiction over such a case; first, the United

States Code provides that “[t]he district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This

statute confers on the federal district courts what is known as “federal question jurisdiction.”

Second, pursuant to 28 U.S.C. § 1332, diversity jurisdiction arises when the matter is between

citizens of different states and the amount in controversy exceeds $75,000. 

C. Analysis & Conclusion

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Plaintiff’s purported basis for this court’s jurisdiction is that the U.S. Government is a

Plaintiff; however, the United States is not a party to this action. Plaintiff’s complaint could not

allege diversity of citizenship under §1332 because both Plaintiff and Defendants are citizens of

Michigan. Finally, Plaintiff does not allege any federal question jurisdiction under 28 U.S.C.

§1331 because Plaintiff complains about landlord/tenant issues rather than any claim arising under

any federal law. These landlord/tenant issues do not state a federal question. See, Elliott v. Plaza

Properties, Inc., No. 2:08cv1037, 2010 WL 2541020, at *5-6 (S.D. Ohio June 18, 2010) (noting

that even where a Section 8 landlord evicts a tenant, he or she is not acting as a federal actor and

there is no jurisdiction to review the propriety of the landlord’s actions). 

Accordingly, the complaint fails to state a basis for this court’s exercise of subject matter

jurisdiction and should be dismissed. Fed. R. Civ. P. 12(h)(3).

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A party may respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2). See

also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v.

Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d

947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise

others, will not preserve all the objections a party may have to this Report and Recommendation.

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Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR

72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection

must recite precisely the provision of this Report and Recommendation to which it pertains. Not 

later than 14 days after service of an objection, the opposing party may file a concise response 

proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, in the same 

order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the 

Court determines that any objections are without merit, it may rule without awaiting the response.

Date: August 15, 2014 /S PATRICIA T. MORRIS

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date

using the Court’s CM/ECF system. A hard copy was served by first class mail on Patricia

Wieszciecinski, 210 W. North Union, Apt. 7, Bay City, MI, 48706; and on Dave LaBrenz at Dave

LaBrenz Rentals, P.O. Box 322, Linwood, MI, 48634.

Date: August 15, 2014 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Morris

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