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Rossmann v. Smiley

United States District Court, D. North Dakota

January 2, 2018

Brud Rossmann, Plaintiff,
v.
Smiley, et. al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          CHARLES S. MILLER, JR., MAGISTRATE JUDGE

         The plaintiff, Brud Rossmann (“Rossmann”), initiated the above-entitled action pro se with the submission of an application to proceed in forma pauperis and a proposed Complaint. For the reasons set forth below, the undersigned grants Rossmann's application to proceed in forma pauperis, waives the filing fee, and directs the Clerk's office to file the Complaint. The undersigned further recommends that the above-entitled action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2).

         I. BACKGROUND

         The number of defendants Rossmann is endeavoring to sue is legion. What they have done to raise Rossmann's ire is unclear. Rossmann's Complaint is ostensibly a string of non sequiturs punctuated by the occasional racial, ethnic, and/or gender slur. As best as the undersigned can discern, this matter has something to do with Rossmann's SSI benefit and a travel ban to which Rossmann believes he has been subjected.

         This is not the first such suit filed by Rossmann. He previously filed a suit in this district that was predicated in part on the perceived travel ban. See Rossmann v. Duke, et. al., Case No. 1:17-cv-254 (D.N.D.). His pleadings in the instant suit incorporate by reference similar pleadings that he apparently filed in other districts. And initiating the instant suit, he contemporaneously initiated a third suit in this district over what appeared to be an issue with his SSI benefit and the perceived travel ban. Rossmann v. Bowser, et. al., Case No. 1:17-cv-276 (D.N.D.).

         II. DISCUSSION

         A. Waiver of Filing Fee

         Proceedings in forma pauperis are governed by 28 U.S.C. § 1915, which provides that the court may authorize the commencement of a suit without prepayment of fees by a person submitting a financial affidavit evincing an inability to pay. See 28 U.S.C. § 1915(a)(1). “[I]n forma pauperis status does not require a litigant to demonstrate absolute destitution.” Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). There is no bright-line test for determining whether a litigant qualifies to proceed in forma pauperis, and the decision whether to grant or deny such a motion lies within the sound discretion of the trial court. See id.; see also Helland v. St. Mary's Duluth Clinic Health Sys., Civil No. 10-31, 2010 WL 502781, at **1-2 (D. Minn. Feb. 5, 2010).

         Having reviewed Rossmann's financial affidavit, the undersigned finds that he lacks the financial resources to pay the filing fee. Consequently, the undersigned GRANTS his application to proceed in forma pauperis, waives the filing fee, and directs the Clerk's office to file his Complaint. This does not end the undersigned's analysis, however.

         B. Application of § 1915(e)(2)

         Notwithstanding Rossmann's financial eligibility to proceed in forma pauperis, the court may, pursuant to 28 U.S.C. § 1915(e)(2), “dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

         Federal Rule of Civil Procedure 8(a)(2) requires a claim for relief contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” To meet this standard, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying the standard, the court must accept the plaintiff's factual allegations as true. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         Although Rossmann professes to be an attorney, he is proceeding pro se and is therefore entitled to a liberal construction of his Complaint. Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). That being said, in construing his Complaint, the court “will not supply additional facts, nor . . . construct a legal theory for plaintiff that assumes facts that have not been pleaded.” Id. (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).

         Rossmann's Complaint is problematic in several respects. First, it neither describes with any coherence when, how, or by whom Rossmann was allegedly wronged nor adequately articulates a basis to venue this dispute in this district. Thus, as drafted, it fails to meet the most lenient of pleading standards. Second, Rossmann's claims are not only vague and conclusory, the majority of them are clearly fanciful, fantastic, and delusional, particularly when viewed in conjunction with the sheer number of defendants against whom he is seeking relief. Third, there is nothing in the Complaint to support this court's exercise of personal jurisdiction; it is utterly devoid of indication that the conduct to which he takes offense occurred in North Dakota or that any of the alleged players had any meaningful contact with or connection to North Dakota. See Sanders v. United States, 760 F.2d 869, 871-72 (8th Cir. 1985) (recognizing that court may properly conclude, sua sponte, that the action should be summarily dismissed when an indigent plaintiff's complaint is devoid of any allegations supporting personal jurisdiction); see also Trujilo v. Williams, 465 F.3d 1210, 1216-17 (10th Cir. 2006) ("In the context of affirmative defenses, we have cautioned that sua sponte dismissal on such grounds should be reserved for those extraordinary instances when the claim's factual backdrop clearly beckons the defense. The same caution applies to sua sponte dismissals for lack of personal jurisdiction and improper venue. Accordingly, under ...


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