UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALFRED STONE,

Plaintiff,

v. Case No. 15-11369

SABRINA QUALITY TYPING SERVICE,

Defendant.

/

OPINION AND ORDER GRANTING APPLICATION TO PROCEED IN FORMA

PAUPERIS AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915(e)(2)

Plaintiff Alfred Stone initiated this pro se action seeking damages against Sabrina

Quality Typing Service. On April 16, 2015, Plaintiff filed an application to proceed in

forma pauperis, which the court will grant. See 28 U.S.C. § 1915(a)(1). However, the

court will dismiss this action pursuant to 28 U.S.C. § 1915(e)(2).

I. STANDARD

Plaintiff will be granted leave to proceed without prepayment of the filing fee for

this action due to his indigence. Under the Prison Litigation Reform Act (“PLRA”), the

court is required to sua sponte dismiss an in forma pauperis complaint before service on

a defendant 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. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915(e)(2)(B). 

Similarly, the court is required to dismiss a complaint seeking redress against

government entities, officers, and employees that it finds to be frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a

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defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). A complaint is

frivolous if it lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319,

325 (1989).

Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a short

and plain statement of the claim showing that the pleader is entitled to relief,” as well as

“a demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of this rule is

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) and Fed. R. Civ. P. 8(a)(2)). While this notice pleading standard

does not require “detailed” factual allegations, Twombly, 550 U.S. at 555, it does require

more than the bare assertion of legal conclusions or “an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

II. DISCUSSION

“Federal courts are courts of limited jurisdiction. They possess only that power

authorized by Constitution and statute, which is not to be expanded by judicial decree. 

It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of

establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). Plaintiff

may establish that the court has jurisdiction over this action in one of two ways. First,

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Plaintiff may bring the action pursuant to a “law of the United States,” within the

meaning of 28 U.S.C. § 1331. In order to satisfy § 1331, Plaintiff must specify which

federal law, constitutional provision, or treaty Defendants are alleged to have violated. 

Plaintiff may also establish the court’s jurisdiction by alleging diversity of citizenship

pursuant to 28 U.S.C. § 1332. 

Here, Plaintiff alleges jurisdiction through § 1331. He purportedly brings his

action under the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”) and asserts three

causes of action: (1) Violation of the Texas Deceptive Trade Practices Act; (2) Negligent

Misrepresentation; and (3) “Fraud on Fraudulent Misrepresentation.” Plaintiff’s

complaint must be dismissed for several reasons.

 First, a claim under the FTCA may only be asserted against the United States of

America. 28 U.S.C. § 2674; Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990);

Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985). Here, Plaintiff did not name the

United States as a party to this action, nor does he assert that Defendant is a

government agent. Indeed, it is unclear from the nearly indecipherable complaint who

precisely Defendant is. It appears that Plaintiff entered into some kind of “letter

agreement” with Defendant for typing services, and Plaintiff is dissatisfied with the

quality of those services. It is difficult for the court to imagine how this states a federal

cause of action, under the FTCA or any federal statute, and this court is not required to

conjure up allegations not pleaded or guess at the nature of an argument. Brown v.

Wal–Mart Stores, Inc., 507 F. App'x 543, 547 (6th Cir. 2012); Martin v. Overton, 391

F.3d 710, 714 (6th Cir. 2004).

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Moreover, even if Plaintiff had properly asserted a claim under the FTCA,

Plaintiff’s complaint is further deficient. Before Plaintiff can proceed on an FTCA claim

in federal court, he must first present an administrative claim to the appropriate federal

agency for administrative settlement within two years of its accrual, 28 U.S.C. §

2675(a); McNeil v. United States, 508 U.S. 106,111 (1993). Then, if the agency denies

the claim, the claimant must then commence an action in federal court within six months

of the agency's denial of the claim. See 28 U.S.C. § 2401(b). The FTCA is a limited

waiver of sovereign immunity which permits an action against the United States for

wrongful acts committed by its employees during the course of their employment, and is

the exclusive remedy for such acts or omissions. 28 U.S.C. § 2679; Fitch v. United

States, 513 F.2d 1013, 1015 (6th Cir. 1975). Timely and complete exhaustion is

required before an FTCA claimant can file in federal court. See 28 U.S.C. § 2401; 28

U.S.C. § 2675(a); McNeil, 608 U.S. at 113. Plaintiff makes no allegation that he

complied with the required exhaustion procedures under the FTCA. Taylor v. United

States, 161 F. App’x 483, 486 (6th Cir. 2005); Wilson v. United States, 93 F. App’x 53,

54 (6th Cir. 2004).

Accordingly, the court finds that Plaintiff’s complaint must be dismissed for lack of

subject matter jurisdiction, as he has failed to properly identify a federal cause of action

under the FTCA and, even if he had so alleged, his claim would nonetheless require

dismissal for lack of exhaustion and failure to state a claim.

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III. CONCLUSION

Accordingly, IT IS ORDERED that Plaintiff’s application to proceed in forma

pauperis [Dkt. # 2] is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s complaint [Dkt. # 1] is DISMISSED

pursuant to 42 U.S.C. § 1915(e)(2).

s/Robert H. Cleland

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: June 30, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, June 30, 2015, by electronic and/or ordinary mail.

s/Lisa Wagner

Case Manager and Deputy Clerk

(313) 234-5522 

S:\Cleland\JUDGE'S DESK\C3 ORDERS\15-11369.STONE.1915.FTCA.wpd

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