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White v. City of New Berlin

United States District Court, E.D. Wisconsin

March 17, 2016

ELLEN C. WHITE, Plaintiff,
v.
CITY OF NEW BERLIN, KARI MORGAN, and DAVID AMENT, Defendants.

ORDER GRANTING THE PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), SCREENING THE COMPLAINT (DKT. NO. 1), AND ORDERING THE PLAINTIFF TO FILE AN AMENDED COMPLAINT

HON. PAMELA PEPPER United States District Judge

On January 11, 2016, plaintiff Ellen White, representing herself, filed a complaint alleging that the defendants had discriminated against her. Dkt. No.1. She also filed a motion to proceed in forma pauperis. Dkt. No. 2. This order addresses the motion and screens the complaint.

MOTION TO PROCEED IN FORMA PAUPERIS

A district court may authorize a plaintiff to proceed in forma pauperis- meaning that she does not have to pre-pay the $400 filing fee to start a civil lawsuit-if the plaintiff submits an affidavit listing her assets, indicating that she is unable to pay the fees, and stating her belief that she is entitled to the relief she seeks. 28 U.S.C. §1915(a). A district court has the discretion to order a plaintiff to pay a portion of the filing fee, and to waive the remainder if it finds that the plaintiff cannot pay the full expense but can pay part of it. See Longbehn v. United States, 169 F.3d 1082, 1083 (7th Cir. 1999).

The plaintiff’s Non-Prisoner Request to Proceed in District Court Without Prepaying the Filing Fee, which she filed on January 11, 2016, indicates that she is not employed and is not married. Dkt. No. 2 at 1. She reports two sources of income. Id. at 2. The application indicates that she receives $1, 606.65 each month from Randstad U.S., L.P., and receives $4, 100 monthly from the State of Wisconsin in unemployment benefits. If the plaintiff truly did receive those amounts each month, that would mean that she received a total of $5, 706.65 in monthly income. She listed her expenses $200 in rent each month, $50 a month in credit card payments, and $600 in monthly household expenses, totaling $850 a month in expenses; again, if the plaintiff actually did receive $5, 706.65 per month in income, and had $850 a month in expenses, she would have a monthly disposable income of $4, 856.65-more than enough to pay the filing fee.

The application also indicates that the plaintiff owns a 2006 Scion xB which she values at $3, 900. Id. at 3. It indicates that she owns her home free and clear, that the home has a value of $42, 200, and that she has equity in the home in that same amount. Id. It also indicates that she has a bank account containing $300. Id.

This is not, however, the plaintiff’s only case before this court. On January 20, 2016, she filed a pro se complaint against Randstad US, Randstad Holding NV, U.S. Bank, and U.S. Bancorp. White v. Randstad et. al., Case No. 16- CV-76 (E.D. Wis. 2016). In that case, she also filed a application to proceed in forma pauperis-indeed, the identical application that she filed in this case. Dkt. No. 2. On February 18, 2016, based on the calculations described above, the court denied the motion on the basis that the plaintiff had enough money to pay the filing fee. Dkt. No. 4. In that case, the plaintiff asked the court to reconsider. Dkt. No. 6. With the motion to reconsider, the plaintiff explained her financial circumstances in greater detail. Dkt. Nos. 6-7. The court finds that that explanation-which caused the court to reverse its decision requiring her to pay the filing fee-is equally applicable in this case.

In Case No. 16-CV-76, the plaintiff stated that, in the year 2015, she received only $1, 606.65 in total income from her employment at Randstad US, and received only $4, 100 in unemployment benefits. Currently, she is not employed and has no income other than $194 per month in food share benefits. She applied for Social Security disability benefits, but her application was denied. She has only $368.24 in her checking account and $123.85 in her savings account. Further, she declares that, although she has an ownership interest in the home valued at $42, 200 (which is not subject to a mortgage or similar encumbrance), her interest is divided among her three siblings and her mother, and she cannot borrow against the home. She states that she has $850 in monthly expenses, consisting of $200 in rent, $50 in credit card payments, and $600 in household expenses. The plaintiff’s mother and siblings occasionally provide her with assistance, but they have a limited ability to do so.

Applying the additional information filed in Case. No. 16-CV-76, the court finds that the plaintiff has demonstrated that she does not have the resources to pay the filing fee in this Case No. 16-CV-41.

The second prong of the fee waiver analysis requires the court to consider whether the plaintiff’s claim appears to be frivolous. 28 U.S.C. §1915(e)(2)(B)(i). A case is frivolous if there is no arguable basis for relief either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir. 1993)).

The plaintiff states that she “worked as a part-time human resources clerk from May 28, 2013 through June 5, 2014 for the City of New Berlin.” Dkt. No. 1 at 3. She alleges that the “defendant”-she doesn’t say which one-fired her on June 5, 2014. The complaint alleges that she was fired after defendant Morgan gave her a memo stating that the plaintiff’s probationary period was going to be extended for two months (because the plaintiff had been there only four months and defendant Morgan needed more time to evaluate her performance). Id. The plaintiff alleges that defendant City of New Berlin singled her out to be fired, in contrast to other employees who received one-to-one counseling about their job performance but were not fired. Id. She alleges that defendant Morgan, under the direction of defendant Ament, fired her for three reasons: (1) she is an African-American female; (2) she is over the age of forty; and (3) she needed accommodations. Id.

The plaintiff’s complaint does not indicate what federal law she believes the defendants violated, but the court can hazard some guesses from her factual allegations. The plaintiff alleges that the defendants fired her because of her race, because of her age, and because she needed accommodation- presumably, because she was disabled.

One option is that the plaintiff means to allege that the defendants (a municipality and its employees) violated her civil rights under 42 U.S.C. §1983, which prohibits individuals acting under color of state law from violating a person’s constitutional rights. The Constitution prohibits employment discrimination on the basis of race, age or disability. The plaintiff also brings her complaint against defendants who arguably acted under color of law.

The plaintiff also asserts facts that could provide the basis for a claim under the Americans with Disabilities Act (42 U.S.C. §12201(6), et seq.), the Age Discrimination in Employment Act (29 U.S.C. §621, et seq.), Title VII of ...


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