Facundo v. Immigraction and Naturalization et al, No. 4:2009cv01456 - Document 5 (N.D. Ohio 2009)

Court Description: Memorandum Opinion and Order: The request to proceed in forma pauperis (Related Doc # 2 , 4 ) is granted and this action is dismissed under section 1915(e). Further, the court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. (Related Doc # 1 ). Judge Sara Lioi on 9/21/2009. (P,J)

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Facundo v. Immigraction and Naturalization et al Doc. 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ENRIQUE FACUNDO, Plaintiff, v. IMMIGRATION AND NATURALIZATION/ICE, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 4:09 CV 1456 JUDGE SARA LIOI MEMORANDUM OF OPINION AND ORDER On June 26, 2009, plaintiff pro se Enrique Facundo filed this in forma pauperis action against Immigration and Naturalization/ICE. The complaint, although extensive, does not set forth allegations intelligible to this Court. 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 granted, or if it lacks an arguable basis in law or fact.1 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). Principles requiring generous construction of pro se pleadings are not without limits. Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985). A complaint must contain either direct or inferential allegations respecting all the material elements of some viable 1 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). Dockets.Justia.com legal theory to satisfy federal notice pleading requirements. See Schied v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). District courts are not required to conjure up questions never squarely presented to them or to construct full blown claims from sentence fragments. Beaudette, 775 F.2d at 1278. To do so would "require ...[the courts] to explore exhaustively all potential claims of a pro se plaintiff, ... [and] would...transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Id. Even liberally construed, the complaint does not contain allegations reasonably suggesting plaintiff might have a valid federal 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). For all the foregoing reasons, the request to proceed in forma pauperis is granted 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. IT IS SO ORDERED. Dated: September 21, 2009 HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE 2

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