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Dicosimo v. VanStraten

United States District Court, E.D. Wisconsin

June 10, 2016

NATHANIEL JOSEPH DICOSIMO, Plaintiff
v.
BRIDGET K. VANSTRATEN, Defendant.

          DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), GRANTING MOTION FOR AN EXTENSION OF TIME TO PAY THE FILING FEE (DKT. NO. 12), AND DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION

          HON. PAMELA PEPPER United States District Judge

         The pro se plaintiff, Nathaniel Joseph Dicosimo, was confined at the Winnebago County Jail when he filed a complaint alleging that the defendant had taken a series of actions designed to make him lose custody of his child. Dkt. No. 1. He since has been released from jail, and now resides in Oshkosh, Wisconsin. See Dkt. No. 9. The plaintiff is suing Bridget K. VanStraten, who resides in Menasha, Wisconsin.

         I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915; see Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the civil case-filing fee, as long as he meets certain conditions. One of those conditions is a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C. § 1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350.00 filing fee over time through deductions from his prisoner account. Id.

         On January 6, 2016, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $75.89. Dkt. No. 14. The plaintiff paid that fee on February 26, 2016. Accordingly, the court will grant the plaintiff’s motion for leave to proceed without pre-paying the filing fee. Because the plaintiff has been released from jail, the court will direct him to submit the remainder of the filing fee to the Clerk of Court as he is able. See Robbins v. Switzer, 104 F.3d 895, 897 (7th Cir. 1997) (former inmate required to pay full filing fee under 28 U.S.C. §1915(b) because he was a prisoner when he filed appeal).

         The court notes that on May 5, 2016, the plaintiff filed a motion asking for an extension of time until May 30, 2016 to pay the filing fee. Dkt. No. 12. He indicates in that motion that now that he has been released from prison, he must pay child support from his earnings at Neenah Foundry. Id. While this motion was not necessary, the court will grant it, and again, will order that he pay the remainder of the filing fee as he is able.

         II. REVIEW OF THE PLAINTIFF’S COMPLAINT

         Under the in forma pauperis statute, 28 U.S.C. §1915(e)(2), the court shall dismiss a case at any time if it determines that the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.[1]

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, the plaintiff shall provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The plaintiff need not plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. The court must give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. Allegations in the Complaint

         Based on the complaint allegations, the plaintiff and the defendant have had a volatile relationship. The complaint describes domestic disputes, some of which allegedly involve physical altercations and property damage. For example, the plaintiff alleges that in September 2015, the defendant got “extremely angry at our apartment, ” broke a door off its hinges, and threw a shoe rack, injuring herself in the process. Dkt. No. 1 at 3. According to the complaint, the Child Protective Services worker arrived and witnessed the damage. Id. The plaintiff left the home with their nine-month-old daughter. He didn’t have anywhere to go, so he went to his friend’s house. Id.

         The plaintiff alleges that when he returned to retrieve some of his property, the defendant had thrown the property on the front lawn-his own, as well as formula, clothing, wipes, diapers and other items for his daughter. Id. at 4. In addition, the defendant allegedly told the plaintiff’s probation officer that he ...


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