Plante v. Shine Doc.

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Case 1:07-cv-00156-ML-LDA Document 3 Filed 05/14/2007 Page 1 of 5

UNITED STATES DISTRICT COURT

DISTRICT OF RHODE ISLAND

WESLEY DANA PLANTE d/b/a :

LAND PLAN ASSOCIATES :
:
v. : C.A. No. 07-156ML
:
ALLAN M. SHINE, Receiver of :
Freedom Bay Cottages, LLC :

REPORT AND RECOMMENDATION FOR

SUMMARY DISMISSAL PURSUANT TO 28 U.S.C. § 1915(e)

Lincoln D. Almond, United States Magistrate Judge

Background

Before this Court for Determination is Plaintiff’s Application to Proceed In Forma Pauperis

(“IFP”) (Document No. 2) pursuant to 28 U.S.C. § 1915. On May 7, 2007, Plaintiff Welsey Dana

Plante d/b/a Land Plan Associates filed a Complaint alleging a cause of action under “U.S. CIVIL

CODE, ENVIRONMENTAL LAW # _____.” On the Civil Cover Sheet, Plaintiff described his suit

as “unfound neglect of soils/conditional impact on flooding; RAWP Impact on wetlands and

pollution” and demands $32.1 million. Plaintiff’s Complaint was accompanied by an Application

to Proceed IFP without being required to prepay costs or fees, including the $350.00 civil case filing

fee. After reviewing Plaintiff’s Application signed under penalty of perjury, this Court concludes

that Plaintiff has not provided sufficient financial information at this time for the Court to determine

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IFP status1 and thus, Plaintiff’s Application to Proceed IFP (Document No. 2) is DENIED without

prejudice.

However, in assessing IFP status, this Court is also required by statute to further review the

Plaintiff’s Complaint sua sponte under 28 U.S.C. § 1915(e)(2) and to dismiss this suit if it is

“frivolous or malicious,” or “fails to state a claim on which relief may be granted.” For the reasons

discussed below, this Court recommends that Plaintiff’s Complaint be DISMISSED without

prejudice because, as currently drafted, it is “frivolous” and/or “fails to state a claim on which relief

may be granted” pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

Standard of Review

Section 1915 of Title 28 requires a federal court to dismiss an action brought thereunder if

the court determines that the action “fails to state a claim on which relief may be granted.” 28

U.S.C. § 1915(e)(2)(B)(ii). The standard for dismissal of an action taken IFP 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. aRusso, 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. § 1915(e)(2)(B)(i).

A claim “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989). The First Circuit has held that the affirmative defense of the statute of

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For instance, Plaintiff reports owning certain mineral rights in Alaska but does not disclose the value of such
rights. He reports that he receives support from Carolyn W. Plante but does not describe the type or amount of such
support. Further, Plaintiff reports past or anticipated revenue from self-employment and accident “dividends” but does
not sufficiently specify the amount, date or frequency of such revenue. Finally, Plaintiff reports that he transferred an
asset valued at “120 million dollars” within the last twelve months but his description of the asset and its liquidity is
unclear at best.

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limitations may justify dismissal under Section 1915, see Street v. Vose, 936 F.2d 38, 39 (1st Cir.

1991), and other courts have upheld dismissals under Section 1915 because of other affirmative

defenses appearing on the face of a complaint. See e.g., Kimble v. Beckner, 806 F.2d 1256, 1257

(5th Cir. 1986).

Discussion

This Court is recommending that Plaintiff’s 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 Plaintiff’s 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 the Plaintiff’s 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 Plaintiff’s

Complaint, there are two fundamental legal deficiencies apparent from its face which warrant its

summary dismissal. These deficiencies are discussed in more detail below.

Plaintiff’s Complaint is disjointed and confusing. He makes reference to the “U.S. Civil

Code, Environmental Law” but intentionally leaves a blank line for the particular section of the U.S.

Code upon which his suit is based. His Complaint consists of six “whereas” clauses. It does not

contain a caption including the names of all parties to the case, as required by Fed. R. Civ. P. 10(a)

and LR Cv 5(a)(1), or a “short and plain statement” of the basis for jurisdiction, basis for claim and

relief sought, as required by Fed. R. Civ. P. 8(a).

It appears that Plaintiff’s Complaint relates to an unfinished condominium project located

on a 106-acre parcel in Portsmouth and Middletown known as Freedom Bay. The project went into

receivership in 2006. See Stock Building Supply, Inc. v. Freedom Bay Cottages, LLC, et al., NM

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2006-0495 (Newport County Superior Court). Plaintiff’s Complaint acknowledges that the project

is in “receivership” and, according to the Civil Cover Sheet and Plaintiff’s IFP Application, his

claim is made against the “Receiver of Freedom Bay Cottages, LLC.”

From Plaintiff’s Complaint, it is impossible to ascertain what specific federal law his claim

is based upon, what relief he is seeking or what standing he or his “dba” Land Plan Associates has

to pursue an environmental claim against the Freedom Bay project through its Receiver.2 It is also

impossible to ascertain from the Complaint any legal or factual basis for Plaintiff’s assertion that

he is entitled to $32.1 million in damages. It appears that Plaintiff has taken it upon himself to

redesign the project and wants this Court to adopt and impose his redesign on the project through

the Receiver. In particular, Plaintiff asks this Court:

to gentrify the Zoning and Remediate a mixed contextural site

development plan for incorporating a 3/4 acre lot subdivision of
condominium homes for distinct age categories: this will be known
as the Declaration of a Residential Re-Zone with Restrictions
Masterplan By this U.S. District Court, Adapted by Land Plan
Associates, Urban Designers and Environmental Planners, located at
172 Taunton Avenue, Suite 2, East Providence, R.I. 02914.

Plaintiff’s Complaint, p. 1 (4th whereas clause).

Generally, zoning and land use are considered matters of local concern and federal/state

comity principles dictate against a federal court rezoning or redesigning a development project

which has received any necessary state and local approvals. See Steel Hill Dev., Inc. v. Town of

Sanbornton, 469 F.2d 956, 960 (1st Cir. 1972) (“a [federal] court does not sit as a super zoning

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On December 18, 2006, the Superior Court issued an Order Appointing Allan Shine as Permanent Receiver
of Freedom Bay Cottages, LLC, Adult Assisted Care Associates, LLC and Somerfield Builders, LLC (“Defendants”)
and “Restrained and Enjoined” the prosecution of any suits or claims against “Defendants, or any of their property, in
any Court, agency, tribunal, or elsewhere.” Plaintiff’s Complaint does not assert that he has obtained relief from this
Order of the Superior Court or has otherwise been excused from presenting any claim as to the property to the Receiver
in the State Court Receivership proceeding.

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board”). Based on the current Complaint, this Court does not see any basis for federal jurisdiction

or any legal basis for the unusual “Residential Re-Zone” relief which Plaintiff apparently seeks or

his $32.1 million demand.

Conclusion

For the reasons stated, Plaintiff’s Motion to Proceed In Forma Pauperis (Document No. 2)

is DENIED without prejudice. Further, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii), this Court

recommends that Plaintiff’s Complaint (Document No. 1) be DISMISSED without prejudice.

Any objection to this Report and Recommendation must be specific and must be filed with

the Clerk of the Court within ten (10) 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, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605

(1st Cir. 1980).

/s/ Lincoln D. Almond

LINCOLN D. ALMOND
United States Magistrate Judge
May 14, 2007

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