Chhay et al v. Bokor et al, No. 1:2012cv02024 - Document 3 (N.D. Ohio 2012)

Court Description: Memorandum Opinion and Order granting 2 Motion to proceed in forma pauperis and this action is dismissed under section 1915(e). Further, the court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Dan A. Polster (C,KA)

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Chhay et al v. Bokor et al Doc. 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO SOKLYNA CHHAY, et al., Plaintiffs, v. DAVID B. BOKOR, et al., Defendants. ) ) ) ) ) ) ) ) ) CASE NO. 1:12 CV 2024 JUDGE DAN AARON POLSTER MEMORANDUM OF OPINION AND ORDER On August 6, 2012, pro se plaintiffs Soklyna Chhay, Hong Kim Chhay, and Borath Hang filed this in forma pauperis action against David B. Bokor, Timothy J. McGinty, and John and Jane Does. Plaintiffs allege that a foreclosure action against them in the Cuyahoga County Court of Common Pleas is a result of a conspiracy, and violates their civil rights.1 In particular, plaintiffs emphasize that Mr. Bokor, the attorney representing Wells Fargo Bank in the foreclosure case, has filed papers continuing to show Timothy J. McGinty as the presiding judge, even though the presiding judge is now Judge Annette G. Butler. Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be 1 See, Wells Fargo Bank v. Chhay, Cuy. Cty. Comm. Pls. Case No. CV-11-768418, http://cpdocket.cp.cuyahogacounty.us. Dockets.Justia.com granted, or if it lacks an arguable basis in law or fact.2 Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). The pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Id. Nor does a complaint suffice if it tenders naked assertion devoid of further factual enhancement. Id. It must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. 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. Id. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. Even liberally construed, the complaint does not contain allegations reasonably suggesting plaintiffs might have a valid claim. See, Lillard v. Shelby County Bd. of Educ,, 76 F.3d 716 (6th Cir. 1996)(court not required to accept summary allegations or unwarranted legal conclusions in determining whether complaint states a claim for relief). Accordingly, the request to proceed in forma pauperis is granted and this action is 2 A claim may be dismissed sua sponte, without prior notice to the plaintiff and without service of process on the defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of the reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177, 1179 (6th Cir. 1985). 2 dismissed under section 1915(e). Further, the court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED. /s/Dan Aaron Polster 8/17/12 DAN AARON POLSTER UNITED STATES DISTRICT JUDGE 3

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