-MRM Robinson v. Department of Treasury, No. 3:2010cv00311 - Document 3 (S.D. Ohio 2010)
Court Description: DECISION AND ORDER - It is hereby ordered that the Clerk issue process to the United States Attorney, the United States Attorney General, and the Secretary of the Treasury when presented with appropriate forms of process by Plaintiff. After issuance, the summonses shall be delivered with appropriate Marshal 285 forms to the United States Marshal who shall make service. Signed by Magistrate Judge Michael R Merz on 8/3/2010. (kpf1)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON LEONARDO ROBINSON, Plaintiff, : Case No. 3:10-cv-311 District Judge Walter Herbert Rice Magistrate Judge Michael R. Merz -vs: UNITED STATES DEPARTMENT OF THE TREASURY, Defendant. DECISION AND ORDER This action is before the Court for review prior to issuance of process. Plaintiff was granted leave to proceed in forma pauperis under 28 U.S.C. §1915. 28 U.S.C. §1915(e)(2), as amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective April 26, 1996)(the "PLRA"), reads as follows: 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 (A) the allegation of poverty is untrue; or (B) the action or appeal -(i) is frivolous or malicious; (ii) fails to state a claim upon which relief can be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous under this statute if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989). In deciding whether a complaint is frivolous, that is, the Court does not consider whether a plaintiff has good 1 intentions or sincerely believes that he or she has suffered a legal wrong. Rather the test is an objective one: does the complaint have an arguable basis in law or fact? It is appropriate for a court to consider this question sua sponte prior to issuance of process "so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is permitted under §1915(e) only "if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). §1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma pauperis status. Benson v. O Brian, 179 F.3d 1014 (6th Cir. 1999). Filing an in forma pauperis application tolls the statute of limitations. Powell v. Jacor Communications Corporate, 320 F.3d 599 (6th Cir. 2003)(diversity cases); Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)(federal question cases). Plaintiff seeks $600.00 which represents the proceeds of a check issued to him by Defendant on July 11, 2008. Apparently the Treasury admits that Plaintiff was entitled to the money in the first place, but has decided that the endorsement on the check is in Plaintiff s handwriting and he is therefore not entitled to issuance of another check. In its determination letter, the Treasury indicated Plaintiff had a right to file a lawsuit in federal court regarding the denial. Thus this Court cannot say that on its face the Complaint lacks merit or that the Court lacks subject matter jurisdiction. Accordingly, it is hereby ordered that the Clerk issue process to the United States Attorney, the United States Attorney General, and the Secretary of the Treasury when presented with 2 appropriate forms of process by Plaintiff. After issuance, the summonses shall be delivered with appropriate Marshal 285 forms to the United States Marshal who shall make service. August 3, 2010. s/ Michael R. Merz United States Magistrate Judge 3
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