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Benedict v. Folsted

United States District Court, D. Rhode Island

July 20, 2018

JOHN BENEDICT, SR., Plaintiff,
v.
TIMOTHY FOLSTED, Defendant.

          ORDER

          WILLIAM E. SMITH, CHIEF JUDGE.

         Magistrate Judge Lincoln D. Almond filed a Report and Recommendation (“R&R”) (ECF No. 5) in this case, recommending the Court dismiss without prejudice.

         After careful review of the complaint (ECF No. 1), and of the R&R, and having heard no objection, the Court ACCEPTS the R&R and adopts its recommendation and reasoning. This case is DISMISSED without prejudice.

         Plaintiff's Motion for a Temporary Restraining Order (ECF No. 3) is consequently DENIED. Plaintiff has not shown he is likely to have a federal court entertain - much less rule in his favor on - his claim. New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (noting that motion for temporary restraining order will fail “if the moving party cannot demonstrate that he is likely to succeed in his quest”).

         Plaintiff's Motion to Certify Class (ECF No. 3) is also DENIED. See D.R.I. L.R. Gen. 205(a)(2) (“An individual appearing pro se may not represent any other party . . . .”)

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL PURSUANT TO 28 U.S.C. § 1915(e)

         Lincoln D. Almond, United States Magistrate Judge

         Background

         On May 2, 2018, Plaintiff 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). Plaintiff's 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 Plaintiff's Application signed under penalty of perjury, I conclude that Plaintiff is financially unable to pay the fees and costs of this proposed civil case and thus, Plaintiff's Application to Proceed Without Prepayment of Fees (ECF Doc. No. 2) is GRANTED.

         Having granted IFP status, I am required by statute to further review Plaintiff's 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, I recommend that Plaintiff's Complaint be DISMISSED because it is “frivolous, ” and “fails to state a claim on which relief may be granted.” See 28 U.S.C. § 1915(e)(2)(B).

         Facts

         Plaintiff is a Massachusetts resident and the current President of the Rhode Island Chapter of the Seed of Abraham Motorcycle Club. (ECF Doc. No. 1 at p. 1). Defendant is a Minnesota resident and the Interim President of the National Seed of Abraham Motorcycle Club. Id. Plaintiff alleges that Defendant promised “unity” of the nation of motorcycle clubs known as Seed of Abraham, but that Defendant's actions belie his promise of unity. Plaintiff alleges that Defendant has scheduled a meeting of the Seed of Abraham Motorcycle Clubs to elect the new National President. Id. at p. 2. The meeting is scheduled for June 22-24, 2018 in El Paso, Texas, and Plaintiff alleges that Defendant is requiring Members of local clubs to be physically present at that meeting to cast a vote for the next National President. Id. Plaintiff alleges the requirement to be physically present to vote does not further the goal of “unity” and will impose a financial hardship upon him and Chapter Presidents from nine other states. Plaintiff claims the requirement to be physically present to vote is unsupported by the rules or bylaws of the Club. Id. at pp. 2-3, 5-6. He estimates his travel expenses to Texas would be roughly $12, 000.00. Id. at p. 3. Plaintiff brings his Complaint for negligence, promissory estoppel and undue influence. Id. at p. 6. He seeks injunctive and declaratory relief and asks that the Court restrain Defendant from holding the National Meeting in Texas from June 22-24, 2018, and prevent Defendant from acting in any capacity on behalf of the National Chapter of the Motorcycle Club until the issues raised in this suit are resolved. (ECF Doc. No. 3 at pp. 10-11).

         Standard ...


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