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Minerd v. BDI Marketing

February 6, 2007

MICHAEL MINERD, PLAINTIFF,
v.
BDI MARKETING, KAREN WINDLE-BURCHAM, DEBBIE CUZZORT, LORI YENCHIK, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION

Plaintiff Michael Minerd, pro se, filed a motion to proceed in forma pauperis on his complaint against BDI Marketing, Karen Windle-Burcham, Debbie Cuzzort and Lori Yenchik, which sets forth products liability and personal injury claims. This Court granted the motion to proceed IFP on May 5, 2006, and also on that date, dissolved the Rule to Show Cause it had issued requiring plaintiff to file a more specific Amended Complaint detailing the citizenship of defendants and the amount in controversy or be dismissed.

Plaintiff's Amended Complaint withdrew any claims against defendant Lori Yenchik, who appears to be a Pennsylvania citizen, adequately alleged diversity of citizenship of the remaining defendants and the requisite jurisdictional amount, and clarified his jurisdictional predicate as based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

Plaintiff's Amended Complaint alleges that BDI manufactures, distributes or sells "Mini-Thins," a product containing Ephedrine, and that defendants Karen Windle-Burcham and Debbie Cuzzort are, respectively, the President and Vice-President of BDI. Plaintiff also claims he had an affair with Lori Yenchick, who "introduced" him to Mini-Thins to help him lose weight. The Mini-Thins, plaintiff claims, made him paranoid and delusional. Plaintiff claims that Ms. Yenchick gave him a gun and warned him that her husband was irrate and armed, that plaintiff went to see Mr. Yenchik in a paranoid and delusional state, drew his pistol, and that "shots were fired" which ended Mr. Yenchik's life.

Plaintiff was convicted of murder of the first degree by a jury of the Court of Common Pleas of Westmoreland County, Pennsylvania, on May 10, 1996, and currently is serving a life term of imprisonment. Plaintiff seeks, inter alia, a declaratory judgment, injunctive relief and monetary damages against defendants arising from his sentence of life imprisonment and other harms. The Court will now dismiss plaintiff's Amended Complaint as legally frivolous.

Screening pursuant to 28 U.S.C. § 1915

Section 1915 (e)(2), 28 U.S.C. § 1915(e)(2), provides:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--

(A) the allegation of poverty is untrue; or

(B) 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.

The standard under which a district court may dismiss an action as frivolous under 28 U.S.C. § 1915(d) (the predecessor to section 1915 (e)(2)) was clarified by the Supreme Court in Neitzke v. Williams, 490 U.S. 319 (1989). Dismissal is appropriate both when the action is "based on an indisputably meritless legal theory" and when it posits "factual contentions [that] are clearly baseless." Id. at 327. Section 1915A obligates the Court to screen an IFP prisoner's complaint as soon as practicable after docketing, and to dismiss the action if at any time it appears, inter alia, that the action is frivolous, malicious or fails to state a claim. 28 U.S.C. ยง 1915A(b)(1). Although much of the language in the current in forma ...


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