Opinion
Case No. 01-4125-SAC
September 26, 2001
Wendel R. Holloway, Sr., [COR LD NTC] [PRO SE], Wamego, Ks for Wendel R. Holloway, Sr., plaintiff
MEMORANDUM AND ORDER
On September 11, 2001, the plaintiff Wendell R. Holloway, Sr. filed this pro se action and paid the filing fee. The complaint alleges that both he and the defendant are citizens of Kansas and that the subject matter jurisdiction arises from the defendant's violation of the plaintiff's federally protected rights. The only statement of claim found in the complaint consists entirely of this sentence fragment: "Told our kids she had military medical papers to show I'm not their father." For relief, the plaintiff alleges: "To pay relief of jail time. To show papers or tell the court why she said this."
A district court may dismiss sua sponte a pro se complaint for failure to state a claim when it is "patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." See McKinney v. Okla. Dept of Human Services, 925 F.2d 363, 365 (10th Cir. 1991) (quotation and citations omitted). When the filing fee has been paid, a district court generally does not dismiss sua sponte without offering the plaintiff a chance to amend the complaint, unless the court determines that subject matter jurisdiction is lacking because the allegations are "totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion." Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999), cert. denied, 528 U.S. 1198 (2000)
In considering the complaint, the court is mindful that such "pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). This does not mean, however, that a court is to assume the role of advocate for the pro se litigant. Id.
Even under the most liberal construction possible, the incoherent sentence fragments alleged here do not state a federal cause of action or claim for relief. The court can divine no set of circumstances from which an actionable violation of a federally protected right would exist as a result of the defendant telling the plaintiff's children that she had "military medical papers" to prove the plaintiff was not their father. It is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. In sum, the unsubstantial allegations offer no plausible basis for federal subject matter jurisdiction or for an actionable claim under federal law, and an opportunity to amend the complaint would be futile.
IT IS THEREFORE ORDERED that the court dismisses the action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and, alternatively, for failure to state a claim for relief pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.