UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANTONIO COLBERT,

Plaintiff,

 Civil Action 2:11-cv-774

v. Judge James L. Graham

 Magistrate Judge E.A. Preston Deavers

OHIO STATE REPRESENTATIVE 

DALE MALLORY,

Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

 Plaintiff, Antonio Colbert, a resident of Washington, D.C. who is proceeding without the

assistance of counsel, has submitted a request to file a civil action in forma pauperis. (ECF No.

1.) Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who

render services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). 

This matter is also before the Court for the initial screen of Plaintiff’s Complaint as required by

28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, 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). Having performed the initial screen, for the reasons that follow,

the undersigned RECOMMENDS that the Court DISMISS Plaintiff’s Complaint. 

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I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so “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.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S.

319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, Section 1915(e) requires sua

sponte dismissal of an action upon a court’s determination that the action is frivolous or

malicious, or upon determination that the action fails to state a claim upon which relief may be

granted. A claim is frivolous if it lacks “an arguable basis either in law or in fact.” Neitzke, 490

U.S.at 325. The former occurs when “indisputably meritless” legal theories underlie the

complaint, and the latter when it relies on “fantastic or delusional” allegations. Id. at 327–28. 

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See Hill v.

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Formerly 28 U.S.C. § 1915(d). 

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Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this

pleading standard does not require “‘detailed factual allegations,’ . . . [a] pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is

insufficient. Ashcroft v. Iqbal, 566 U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a complaint will not

“suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting

Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain

sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In considering whether this facial plausibility standard is met, a

Court must construe the complaint in the light most favorable to the non-moving party, accept all

factual allegations as true, and make reasonable inferences in favor of the non-moving party. 

Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434

(6th Cir. 2008) (citations omitted). Additionally, when considering a pro se plaintiff’s

complaint, a court “must read [the allegations] with less stringency . . . and accept the pro se

plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible.” Reynosa v.

Schultz, 282 F. App’x 386, 389 (6th Cir. 2008) (citing Denton v. Hernandez, 504 U.S. 25, 33

(1992) (internal citation omitted). A court is also not required to accept as true mere legal

conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.

II.

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The entirety of Plaintiff’s Complaint against Defendant Mallory reads as follows: 

Defendant (State Rep. Dale Mallory) knowing and willingly caused me to be

evicted from my apartment! This makes the Defendant a co-conspiritor [sic] in

my civil action law suit against Social Security and the State of Ohio. I’m sueing

[sic] the Defendant for $500,000.00 dollars and request the Court look into these

allegations and lawsuits I’ve filed against the State of Ohio.

(Compl., ECF No. 1.)

Plaintiff’s Complaint provides insufficient factual content or context from which the

Court could reasonably infer that Defendant violated Plaintiff’s rights. Instead, Plaintiff’s

Complaint consists of nothing more than “unadorned, the-defendant-unlawfully-harmed-me

accusation[s].” Iqbal,129 S.Ct. at 1949. These pure legal conclusions or “legal conclusion[s]

couched as [ ] factual allegation[s]” fail to satisfy the basic federal pleading requirements set

forth in Rule 8(a). Twombly, 550 U.S. at 555. Thus, the undersigned RECOMMENDS that

Plaintiff’s Complaint be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 

III.

 If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

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magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted))

IT IS SO ORDERED. 

Date: September 21, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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