United States District Court, N.D. Mississippi, Aberdeen Division
matter comes before the Court sua sponte in response
to the show cause order entered on January 28, 2019. Doc. 8.
December 10, 2018, Plaintiff Zorri Rush filed his complaint
in this matter, purporting to assert some sort of claim under
the Americans with Disabilities Act. Rush's allegations
against the defendant, in whole, are:
Defendants [sic] in this case are charged with attempting to
deny services to an individual with disabilities in violation
of the Americans with Disabilities acts., [sic]
Defendants provided medical services that included equipment.
The equipment did not perform as suggested by the provider.
In an attempt to resolve the matter, the provider chose to
become physically aggressive and thus failed to offer any
Compl., Doc. 1 at 1. In addition to his complaint, Rush filed
a motion to proceed in forma pauperis. Mot., Doc. 2.
United States Magistrate Judge assigned to this case
recognized several issues with both Rush's complaint and
motion to proceed in forma pauperis. First, because the
complaint contained so few factual allegations, it appeared
not to state a claim for relief or to assert facts supporting
this Court's jurisdiction. Second, despite the fact that
this was at least the eighth case Rush had filed in
a federal district court in Mississippi since September 2018,
he had failed to include information necessary to determine
his pauper status and had failed to use the Court's form
motion, despite being previously admonished to do
To that end, the Magistrate Judge issued an order directing
Rush to: (1) show cause why the complaint should not be
dismissed for failure to state a claim or lack of subject
matter jurisdiction by providing additional facts; and (2)
complete the Court's in forma pauperis application, which
was attached to the order. The response to this order was due
February 11, 2019. That date has passed and Rush has filed
neither a response nor his in forma pauperis application.
U.S.C. § 1915 provides that a court may waive failing
fees for plaintiffs unable to afford them. 28 U.S.C. §
1915(a)(1). But the section also provides that "the
court shall dismiss the case at any time if the
court determines that ... the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief. Id.
§ 1915(e)(2) (emphasis added).
standard for judging whether an in forma pauperis complaint
fails to state a claim is the same as under Rule 12(b)(6).
Hale v. King, 642 492, 487 (5th Cir. 2011). That
standard requires that a plaintiffs complaint
"'contain sufficient factual mutter, accepted as
true, to state a claim to relief that is plausible on its
face.'" Phillips v. City of Dallas, Tex.,
781 F.3d 772, 775-76 (5th Cir. 2015) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d
a claim is frivolous if "(1) the claim's realistic
chance of ultimate success is slight, or (2) the claim has no
arguable basis in law and fact" Wilson v.
Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989)
"District courts have broad discretion in determining
whether a complaint is frivolous under § 1915(d)"
the Court must afford a pro se complaint liberal
construction, Macias v. Raul A. (Unknown), Badge No.
153, 23 F.3d 94, 97 (5th Cir. 1994), it is clear that
Rush's complaint here both fails to state a claim and is
frivolous. What few vague factual assertions Rush makes
provide no arguable basis for a claim against defendants.
Indeed, because the factual allegations of the complaint are
so lacking, the Court is unable make out what Rush's
claim against the defendant could possibly be, much less
whether it has a chance of success. Because his claim is
frivolous, § 1915(d) demands its dismissal. Accordingly,
his claim is dismissed, and his motion to proceed in forma
pauperis s denied as moot.
order in accordance with this opinion shall issue.
 Rush filed this suit in the United
States District Court for the Southern District of
Mississippi. Recognizing that venue was proper in this
district, the court transferred the ...