Sterner v. Sterner (PLR2) ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE STEPHEN STERNER, ) ) Plaintiff, ) ) v. ) NO. 2:18-CV-00162 ) REEVES/WYRICK LYNDA STERNER, ) ) Defendant. ) ) MEMORANDUM OPINION AND ORDER Before the Court is former United States Magistrate Judge Corker’s Report and Recom- mendation (“R&R”) [D. 3] regarding Stephen Sterner’s complaint [D. 2]. Judge Corker recom- mends that Mr. Sterner’s complaint be dismissed under 28 U.S.C. § 1915(e) for failure to state a federal claim upon which relief can be granted, but without prejudice so that Mr. Sterner may re- file in the appropriate court. There have been no objections to the R&R, and enough time has passed to treat any objection as forfeited. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2). Under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), the Court may dismiss a complaint that is frivolous or fails to state a claim upon which relief can be granted.1 The Court has reviewed the record and the findings contained and agrees that Mr. Sterner does not raise a claim arising under a Federal statute or the Constitution or have a basis for diversity jurisdiction. Consequently, this Court has no jurisdiction over the subject matter of the suit. 1 Though 28 U.S.C. § 1915 makes specific reference to “prisoners” and Mr. Sterner is not a prisoner, the Sixth Circuit has held that non-prisoners may proceed under section 1915 as well. See Floyd v. U.S. Postal Serv., 105 F.3d 274, 277 (6th Cir. 1997) (overruled on other grounds in Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999)) (finding that 28 U.S.C. § 1915 is not limited to prisoner suits despite its references to prisoners). Thus, the Court agrees with the R&R and hereby ADOPTS it. For the reasons stated in the R&R, Mr. Sterner’s complaint [D. 2] will be dismissed in a contemporaneously filed judgment. The dismissal will be without prejudice to Mr. Sterner’s right to re-file in a different, appropriate Court. IT IS SO ORDERED. EF UNITED STATES DISTRICT JUDGE