United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN United States Magistrate Judge.
March 7, 2019, Plaintiff Ryan Tyler Kilby filed a pro
se complaint, along with a motion for leave to proceed
in forma pauperis ("IFP"). The IFP Motion
has been referred to me for determination pursuant to 28
U.S.C. § 636(b)(1)(A). Based on my review of the
application, and assuming its representations to be true, I
conclude that Plaintiff has satisfied the requirements of 28
U.S.C. § 1915(a)(1); accordingly, the IFP motion is
granted. However, because of the IFP application, this case
is subject to preliminary screening under 28 U.S.C. §
legal standard for dismissing a complaint for failure to
state a claim pursuant to §§ 1915(e)(2) and 1915A
is the same used when ruling on a Fed.R.Civ.P. 12(b)(6)
motion to dismiss. Hodge v. Murphy, 808 F.Supp.2d
405, 408 (D.R.I. 2011). To survive a motion to dismiss, a
complaint must contain sufficient factual allegations to
"state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). "Threadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal, 556 U.S. at
678. A complaint is also subject to examination of whether
there are appropriate grounds for invoking the court's
jurisdiction. Federal district courts are limited to
exercising jurisdiction over cases that arise "under the
Constitution, laws, or treaties of the United States,"
28 U.S.C. § 1331, and over cases between citizens of
different states where the amount in controversy exceeds $75,
000, 28 U.S.C. § 1332(a). If based on diversity of
citizenship, a viable complaint must also establish both the
requisite amount in controversy and that diversity is
complete, that is, the citizenship of each plaintiff must be
diverse from that of each defendant. Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 373-74(1978).
claim is based on the police-assisted repossession of his
vehicle on February 27, 2019, from private property while he
was sleeping inside it. ECF No. 1-1 at 1. He appears to
allege that he was not in default of any loan or lease of the
car because he had paid an agreed-upon amount after a prior
repossession. Id. He claims that the repossession
was unlawful and sues Credit Acceptance, the putative lender,
Loss Prevention Services, LLC, the repossession company, and
Rhode Island Recovery, the towing company. Id.
Invoking the Fourth Amendment, he alleges that a Tiverton
police officer (Officer Rapoza) used the threat of force to
assist with the repossession, including compelling Plaintiff
to exit the car and performing an unwarranted body search
after he did; based on this claim of a constitutional
violation, he has sued the Tiverton Police Department and
Officer Rapoza. Id. This aspect of the pleading
passes muster, at least at screening.
contrast, based on my review of the operative pleading,
find that the complaint fails to state a claim against the
remaining three of the four named Tiverton police officers.
Two of them, Officers Kobelecki and Codner, are not even
mentioned in the substance of the pleading. All claims
against them fail to state a claim and should be dismissed.
Officer Melody is mentioned as being sued for defamation on a
"totally separate issue"; however, the complaint
includes no facts to support this claim. Accordingly, it
fails to state a claim upon which relief may be granted. I
recommend that the case against Officers Kobelecki, Codner
and Melody should be dismissed.
aside: Plaintiff alleges that his case is based on diversity
of citizenship and that he is a citizen of Massachusetts. ECF
No. 1 at 3. Yet he lists himself as a resident of Rhode
Island.Id. at 1. This strongly suggests
that he is a citizen of Rhode Island, so there is no
diversity between him and Rhode Island Recovery and all of
the Tiverton police officers. This problem does not matter
yet because the Fourth Amendment claim against Officer Rapoza
and the Tiverton Police Department is based on federal
question jurisdiction and the related claims for wrongful
repossession against the lender, repossession company and
towing company may proceed in federal court based on
supplemental jurisdiction. See 28 U.S.C. §
1367. The claim against Officer Melody is unrelated and
cannot be sustained unless there is diversity, but with no
facts to support it, it must be dismissed without regard to
the lack of diversity.
on the foregoing, Plaintiffs application to proceed without
prepayment of fees is GRANTED. However, I recommend that the
claims against Officers Kobelecki, Codner and Melody be
DISMISSED, with leave to replead within thirty days. See 28
U.S.C. §§ 1915(e)(2), 1915 A. If Plaintiff opts not
to file an amended complaint, or if his amended complaint
fails to cure the deficiencies as to Officers Kobelecki,
Codner and Melody, those claims should be dismissed. The
remainder of the claims may proceed.
objection to this report and recommendation must be specific
and must be served and filed with the Clerk of the Court
within fourteen (14) days after its service on the objecting
party. See Fed.R.Civ.P. 72(b)(2); DRILR Cv 72(d). Failure to
file specific objections in a timely manner constitutes
waiver of the right to review by the district judge and the
right to appeal the Court's decision. See United
States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008);
Park Motor Mart. Inc. v. Ford Motor Co.. 616 F.2d
603, 605 (1st Cir. 1980).
 Plaintiff also references a
much-criticized, unreported 1969 decision written by a
Minnesota Justice of the Peace and subsequently vacated.
First Bank of Montgomery v. Daly. No. 19144 (Minn.
J.P. Ct. Dec. 9, 1969); see In re Daly. 171 N.W.2d
818 (Minn. 1969). This case apparently held that a loan is
not owed because the money was "created" by the
bank. If it were the sole basis for Plaintiff's claim
that he was not in default because he does not owe a real
loan, I would recommend dismissal of the claims of wrongful
repossession. See Eastern Savings Bank, FSB v.
Springer, 1 l-CV-4431 (ERK), 2015 WL 13735520, at *8
(E.D.N.Y. Jan. 30, 2015) (citing federal courts that have
admonished parties for relying on this decision).
Fortunately, it is not.
 Because Plaintiff is pro se,
I have employed a liberal construction of his filing. See
Hughes v. Rowe. 449 U.S. 5, 9 (1980) (per curiam);
Haines v. Kerner. 404 U.S. 519, 520-21 (1972) (per
curiam); Instituto de Educacion Universal Corp.v. U.S.
Dep'tof Educ. 209 F.3d 18, 23 (1st Cir.
 Plaintiff has been a frequent litigant
in this Court and consistently describes himself as a
resident of Rhode Island. See Tiverton Police Dep't
v. Kilby, CR. No. 18-25JJM (unsuccessful attempt to
remove state criminal proceedings to this Court); Kilby
v. Johnson and Wales Univ., C.A. No. 14-217ML (dismissed
at screening as frivolous and for failure ...