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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

KIMBERLY FREEMAN, Case No. 1:17-cv-867 

Plaintiff, 

 Barrett, J. 

vs. Bowman, M.J. 

 

RITE AID, et al., 

 Defendants. 

 

REPORT AND RECOMMENDATION 

Plaintiff, purportedly a resident of Louisville, Kentucky brings this action against 

Rite Aid, Dollar Tree, Half Price Books, Kroger Stores, Walmart, and the U.S. Postal 

Service. In January 2018, the Court issued a Deficiency Order that Plaintiff must pay the 

full filing fee of $400.00 or submit a fully completed application and affidavit to proceed in 

forma pauperis within thirty (30) days of the date of this Order. (Doc. 2). Plaintiff failed to 

do so. Accordingly, on April 18, 2018, the undersigned issued a Report and 

Recommendation (R&R) that Plaintiff’s complaint be dismissed for want of prosecution 

and for failure to obey a Court Order. (Doc. 3). Thereafter, Plaintiff filed a motion to 

amend/correct complaint and a motion to proceed in forma pauperis. (See Docs. 5, 6). 

As such, the previous R&R (Doc. 3) is herein withdrawn. 

By separate Order issued this date, plaintiff has been granted leave to proceed in 

forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua 

sponte review of plaintiff=s complaint to determine whether the complaint, or any portion 

of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon 

which relief may be granted or seeks monetary relief from a defendant who is immune 

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from such relief. 28 U.S.C. §1915(e)(2)(B). 

In enacting the original in forma pauperis 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)). To prevent such abusive litigation, Congress has authorized 

federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action 

is frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be 

dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable 

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. 

Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis 

when the defendant is immune from suit or when plaintiff claims a violation of a legal 

interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable 

factual basis when the allegations are delusional or rise to the level of the irrational or 

“wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need 

not accept as true factual allegations that are Afantastic or delusional@ in reviewing a 

complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting 

Neitzke, 490 U.S. at 328). 

Congress also has authorized the sua sponte dismissal of complaints that fail to 

state a claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A 

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent 

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 

94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same 

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token, however, the complaint “must contain sufficient factual matter, accepted as true, 

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also 

Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbal and Twombly governs 

dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)). 

“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept 

all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion 

couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 

478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual 

allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading 

that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause 

of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders 

“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint 

must “give the defendant fair notice of what the . . . claim is and the grounds upon which 

it rests.” Erickson, 551 U.S. at 93 (citations omitted). 

 In the proposed amended complaint, Plaintiff appears to allege that she was 

attacked while at Walgreens by an employee for “retaliation and hate.” (Doc. 5). The 

amended complaint also asserts that customers outside the store also harassed her while 

she was leaving. However, the majority of Plaintiff=s factual allegations are illogical and 

incomprehensible. The complaint provides no factual content or context from which the 

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Court may reasonably infer that the named Defendants violated Plaintiff’s rights. 

Accordingly, the complaint fails to state a claim upon which relief may be granted and 

should be dismissed under 28 U.S.C. §1915(e)(2)(B). 1

Accordingly, for these reasons, it is therefore RECOMMENDED this action be 

DISMISSED with PREJUDICE for failure to state a claim for relief, the previous R&R 

(Doc. 3) be WITHDRAWN and all pending motions (Docs. 4 -12) be DENIED as MOOT. 

It is further RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a) that 

for the foregoing reasons an appeal of any Order adopting this Report and 

Recommendation would not be taken in good faith and therefore deny Plaintiff leave to 

appeal in forma pauperis. 

 s/ Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 

 

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 Furthermore, Plaintiff is a resident of Louisville Kentucky and the allegations contained in the amended complaint 

occurred at a Walgreens in Louisville Kentucky. As such, this court is not the proper venue for this action. 

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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

KIMBERLY FREEMAN, Case No. 1:17-cv-867 

Plaintiff, 

 Barrett, J. 

vs. Bowman, M.J. 

 

RITE AID, et al., 

 Defendants. 

 

NOTICE 

 Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after 

being served with a copy thereof. That period may be extended further by the Court on 

timely motion by either side for an extension of time. All objections shall specify the 

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in 

support of the objections. A party shall respond to an opponent’s objections within 

FOURTEEN DAYS after being served with a copy of those objections. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas 

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 

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