Forbush v. Berenshteyn

• Court: District Court, E.D. Tennessee
• Decided: February 1, 2024
• Docket: 2:23-cv-00173
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

THOMAS FORBUSH, ) ) Case No. 2:23-cv-173 Plaintiff, ) ) Judge Travis R. McDonough v. ) ) Magistrate Judge Cynthia R. Wyrick ILYA BERENSHTEYN, ) ) Defendant. ) )

MEMORANDUM OPINION

Before the Court is Magistrate Cynthia R. Wyrick’s report and recommendation (Doc. 5), which recommends that the Court dismiss Plaintiff’s complaint (Doc. 1). Plaintiff filed the original complaint (Doc. 1) in this action on November 27, 2023, and shortly thereafter filed a motion for leave to proceed in forma pauperis (Doc. 4). Under the Prison Litigation Reform Act, district courts must screen pro se complaints and sua sponte dismiss any claims that are frivolous or malicious, fail to state a claim on which relief may be granted, or name a defendant who is immune. See 28 U.S.C. § 1915(e)(2); Baker v. Wayne Cnty. Fam. Indep. Agency, 75 F. App’x 501, 502 (6th Cir. 2003) (“The statute requires courts to dismiss in forma pauperis complaints that fail to state a claim[] and applies to complaints filed by non-prisoners as well as prisoners.” (citations omitted)). Therefore, Magistrate Judge Wyrick screened Plaintiff’s complaint in addition to considering the motion to proceed in forma pauperis. On screening, Magistrate Judge Wyrick found that Plaintiff’s complaint failed to meet the screening standard. Specifically, Magistrate Judge Wyrick found that Plaintiff’s ineffective assistance of counsel claim was premature given he pleaded guilty to multiple offenses in Sullivan County, Tennessee. (Doc. 5, at 4–5.) Magistrate Judge Wyrick also recommends dismissal of Plaintiff’s claim that Defendant engaged in criminal conduct by improperly billing his time, because the Court lacks the ability to administer the relief Plaintiff seeks. (Id. at 5.) Plaintiff has filed no objections to Magistrate Judge Wyrick’s report and recommendation and

the time to do so has now passed. After reviewing the record, the Court agrees with Magistrate Judge Wyrick’s report and recommendation. The Court hereby ACCEPTS and ADOPTS Magistrate Judge Wyrick’s report and recommendation (Doc. 5). This action SHALL be DISMISSED WITHOUT PREJUDICE as to Plaintiff’s ineffective-assistance-of-counsel claim and WITH PREJUDICE as to Plaintiff’s claim regarding Defendant’s alleged criminal conduct. AN APPROPRIATE JUDGMENT WILL ENTER. /s/ Travis R. McDonough TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE