United States District Court, D. Rhode Island
IRWIN JACOBOWITZ, et. al.
STATE OF PROVIDENCE, et. al.
REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL
PURSUANT TO 28 U.S.C § 1915(e)
Lincoln D. Almond, United States Magistrate Judge
12, 2018, Plaintiffs filed a pro se Complaint accompanied by
an Application to Proceed Without Prepayment of Fees
including the $400.00 per case filing fee. (ECF Doc. Nos. 1,
2). Plaintiffs' Application (ECF Doc. No. 2) filed
pursuant to 28 U.S.C. § 1915 has been referred to me for
determination. 28 U.S.C. § 636; LR Cv 72. After
reviewing Plaintiffs' Application signed under penalty of
perjury, I conclude that Plaintiffs are financially unable to
pay the fees and costs of this proposed civil case and thus
their Application to Proceed Without Prepayment of Fees (ECF
Doc. No. 2) is GRANTED.
granted IFP status, I am required by statute to further
review Plaintiffs' Complaint sua sponte under 28
U.S.C. § 1915(e)(2) and to dismiss if it is
"frivolous or malicious," "fails to state a
claim on which relief may be granted" or "seeks
monetary relief against a defendant who is immune from such
relief." For the reasons discussed below, 1 recommend
that Plaintiffs' Complaint be DISMISSED because it is
"frivolous," and "fails to state a claim on
which relief may be granted." See 28 U.S.C.
sue the "State of Providence Attorney General,"
their former landlords Louis and Jessica Bachetti, the
Bachettis' lawyer Michael Crane, Constables Ken and Kyle
Norigean, Albert and Mrs. Cardoza, John and Jane Does, the
Town of Barrington and the Barrington Police Department as
well as its Police Chief John LaCross and Police Officer
Joshua Melo, In their Statement of Claim, they indicate that
the case "involves" several "State
Actors" and private parties. They claim "illegal
eviction...from property, harassment, discrimination, civil
rights violations." (ECF Doc. No. 1 at p. 6).
1915 of Title 28 requires a federal court to dismiss an
action brought thereunder if the court determines that the
action is frivolous, fails to state a claim or seeks damages
from a defendant with immunity. 28 U.S.C. §
1915(e)(2)(B). The standard for dismissal of an action filed
In forma pauperis is identical to the standard for
dismissal on a motion to dismiss brought under Fed.R.Civ.P.
12(b)(6). See Fridman v. City of N.Y., 195 F.Supp.2d
534. 538 (S.D.N.Y. 2002). In other words, the court
"should not grant the motion unless it appears to a
certainty that the plaintiff would be unable to recover under
any set of facts." Roma Constr. Co. v. a Russo,
96 F.3d 566, 569 (1st Cir. 1996). Section 1915
also requires dismissal if the court is satisfied that the
action is "frivolous." 28 U.S.C. §
l9l5(e)(2)(B)(i). A claim "is frivolous where it lacks
an arguable basis either in law or in fact." Neittke
v. Williams, 490 U.S. 319, 325 (1989).
Court is recommending that Plaintiffs' Complaint be
summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).
In making this recommendation, this Court has taken all of
the allegations in Plaintiffs' Complaint as true and has
drawn all reasonable inferences in his favor. Estelle v.
Gamble, 429 U.S. 97 (1976). In addition, this Court has
liberally reviewed Plaintiffs' allegations and legal
claims since they have been put forth by a pro se
litigant. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). However, even applying these liberal
standards of review to Plaintiffs' Complaint, dismissal
claims are wholly conclusory and completely unsupported by
any facts which might support plausible legal claims against
any of the named Defendants. The Complaint contains no facts
and fails to provide any notice to the Court or the
Defendants as to what Plaintiffs are claiming in this case.
The Complaint fails to state any legal claims upon which
relief could be granted and thus dismissal is required under
28 USC section l9l5(e)(2)(B)(ii).
reasons stated, Plaintiffs' Application to Proceed
Without Prepayment of Fees (ECF Doc. No. 2) is GRANTED.
However, pursuant to 28 U.S.C. §§ l9l5(e)(2)(B)(i)
and (ii), I further recommend that Plaintiffs' Complaint
(ECF Doc. No. 1) be DISMISSED without prejudice.
objection to this Report and Recommendation must be specific
and must be filed with the Clerk of the Court within fourteen
days of its receipt. See Fed.R.Civ.P. 72(b); LR Cv 72.
Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the District
Court and the right to appeal the District Court's
decision. See United States v. Valencia-Copete, ...