Report and Recommendation

Dismissal of Complaint 1 Murphy v. Kids Club et al; 08-14142

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LeKENDRICK LAWUN MURPHY, Case No. 08-14142

 

Plaintiff, Bernard A. Friedman 

 United States District Judge

vs.

Michael Hluchaniuk

KIDS CLUB PROGRAM, et al., United States Magistrate Judge

Defendants.

 /

REPORT AND RECOMMENDATION

TO DISMISS PLAINTIFF’S COMPLAINT

I. PROCEDURAL HISTORY

Plaintiff filed a complaint against defendants Kids Club Program and the

University of Michigan on September 26, 2008. (Dkt. 1). Plaintiff also applied to

proceed in forma pauperis. (Dkt. 2). Plaintiff’s complaint states that “I’d thought

of many charges included Title 18 crimes ... Chapter 110 Sexual Exploitation,”

and “other abuse of Children ...” (Dkt. 1, p. 1). Plaintiff goes on to state that “I

myself thought our pediatric crisis center ozone house had a monopoly on such

gathering activities and would attest as a former Miller House client such services

are needed however the covert collection of such clientele has honestly impeded

the free practice of my faith.” Id. at 2. Plaintiff also writes that “I am still waiting
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Dismissal of Complaint 2 Murphy v. Kids Club et al; 08-14142

for a fatherhood my mother was discouraged from arranging a marriage however I

reversed my decision and am looking for a filipina bride from a ‘life time’

marriage system because of the predatory activity associated with ‘young’... seven

year-old husbands to be they promise the ‘empowerment’ of my four to six year

son or daughters mother who comes from a system that is as much as her

husband.” Id. Attached to plaintiff’s complaint is a brochure from “The Kids

Club Program.” (Dkt. 1, pp. 3-4). 

For the reasons set forth below, the undersigned RECOMMENDS that this

matter be DISMISSED pursuant to 28 U.S.C. § 1915 and Federal Rule of Civil

Procedure 12(b)(1) because plaintiff has failed to state any discernable claim for

relief and this Court has no subject matter jurisdiction.

II. ANALYSIS

Title 28 U.S.C. § 1915 is “meant to ensure indigent litigants meaningful

access to federal courts and applies to both non-prisoner plaintiffs and to plaintiffs

who are incarcerated.” Price v. Heyrman, 2007 WL 188971, *1 (E.D. Wis. 2007)

(internal citations omitted), citing, Nietzke v. Williams, 490 U.S. 319, 324 (1989);

Floyd v. U.S. Postal Serv., 105 F.3d 274, 275-77 (6th Cir. 1997), overruled on

other grounds by Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1999) (“[T]he only

logical interpretation of the statute is that non-prisoners have the option to proceed
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Dismissal of Complaint 3 Murphy v. Kids Club et al; 08-14142

in forma pauperis under § 1915(a).”); see also Stefanski v. Kammeyer, 2008 WL

2062775, *1 (N.D. Ind. 2008) (same). Pursuant to 28 U.S.C. § 1915(e)(2)(B), the

court may screen the complaint before service on the defendants, and must dismiss

the complaint if it is legally “frivolous or malicious” or fails to state a claim on

which relief may be granted. Price, at *1, citing, Rowe v. Shake, 196 F.3d 778,

783 (7th Cir. 1999). A claim is legally frivolous when it lacks an arguable basis

either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). The court

is authorized to dismiss a claim as frivolous where “it is based on an indisputably

meritless legal theory or where the factual contentions are clearly baseless.” 

Price, at *1, citing, Neitzke, 490 U.S. at 327.

To undertake this review of plaintiff’s complaint, the Court need not

address the propriety of plaintiff’s in forma pauperis application because district

courts “may screen complaints filed by all litigants, prisoners and non-prisoners,

regardless of fee status.” Price, at *1, citing, Rowe, 196 F.3d at 783. Moreover, a

district court “may, at any time, sua sponte dismiss a complaint for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure when the allegations of a complaint are totally implausible, attenuated,

unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Apple

v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999), citing, Hagans v. Lavine, 415 U.S.
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Dismissal of Complaint 4 Murphy v. Kids Club et al; 08-14142

528, 536-537 (1974); see also In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir.

1988) (recognizing that federal question jurisdiction is divested by obviously

frivolous and unsubstantial claims.). In considering whether a complaint should

sua sponte be dismissed for lack of subject matter jurisdiction, the Court is

especially mindful that a pro se litigant’s complaint is to be construed liberally. 

Dekoven v. Bell, 140 F.Supp.2d 748, 754 (E.D. Mich. 2001), citing, Middleton v.

McGinnis, 860 F.Supp. 391, 392 (E.D. Mich. 1994); Estelle v. Gamble, 429 U.S.

97, 106 (1976). In reviewing a complaint under this standard, the court must

accept as true the allegations of the complaint in question. Hospital Bldg. Co. v.

Trustees. of Rex Hospital, 425 U.S. 738, 740 (1976). Further, “because access to

the courts is essential to the enforcement of laws and protection of the values that

are rooted deeply in our democratic form of government, this Court may not treat

lightly the claims of any litigant, even those whose contentions appear fantastic

and baseless on their face.” Dekoven, 140 F.Supp.2d at 754. Thus, every

complaint is “entitled to a thorough review to determine whether it has merit and

states a federally cognizable claim.” Id. 

After a thorough and careful review of plaintiff’s complaint, taking all

allegations as true and construing them liberally, the undersigned is unable to

discern any cognizable cause of action over which this Court might have
Report and Recommendation

Dismissal of Complaint

5 Murphy v. Kids Club et al; 08-14142

jurisdiction. Thus, the undersigned suggests that this matter be dismissed for

failure to state a claim on which relief may be granted pursuant to 28 U.S.C.

§ 1915(e)(2) and for lack of subject matter jurisdiction pursuant to Federal Rule of

Civil Procedure 12(b)(1).

III. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that this matter be

DISMISSED for failure to state a claim and want of jurisdiction.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 10 days of service

as provided for in 28 U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2). Failure to file

specific objections constitutes a waiver of any further right of appeal. Thomas v.

Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and Human Servs., 932 F.2d

505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others

with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Sec’y of Health and 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 Local Rule 72.1(d)(2), any

objections must be served on this Magistrate Judge.
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Dismissal of Complaint 6 Murphy v. Kids Club et al; 08-14142

Within 10 days of service of any objecting party’s timely filed objections,

the opposing party may file a response. The response shall not exceed 20 pages in

length unless such page limitation is extended by the Court. The response shall

address specifically, and in the same order raised, each issue contained within the

objections by motion and order. If the Court determines any objections are

without merit, it may rule without awaiting the response to the objections.

Date: December 4, 2008 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on December 4, 2008, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system which will send electronic

notification to the following: not applicable, and I certify that I have mailed by

United States Postal Service the paper to the following non-ECF participant:

LeKendrick Lawun Murphy, 312 West Huron, Ann Arbor, MI 48104.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov