United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
plaintiff filed a pro se complaint alleging that her
civil rights were violated. (Docket #1). This matter comes
before the court on the plaintiff's petition to proceed
in forma pauperis. (Docket #2). Notwithstanding the
payment of any filing fee, the Court must dismiss a complaint
if it raises claims that are “frivolous or malicious,
” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
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)
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [she] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and her
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
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.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: 1) she was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon her by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Village of North Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is
obliged to 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)).
plaintiff alleges that the defendant Michael Poma was a
manager of an Applebee's restaurant. (Docket #1 at 3).
She claims that he violated her First Amendment right to
freedom of speech by “having her arrested for
complaining after being abused by himself (Mike Poma) and his
staff.” Id. The plaintiff alleges that she was
a former employee of Poma's and “question[ed] [his]
hiring practices” while dining in his restaurant.
Id. As a result, her food was withheld, her
“personal space was violated, ” and she was
verbally assaulted and physically intimidated. Id.
This triggered a PTSD anxiety attack in the plaintiff that
has caused her lasting mental distress. Id. at 3-4.
She further alleges that the defendants' actions damaged
her political career and defamed her. Id.
plaintiff's constitutional claim fails because none of
the defendants are state actors, the second required element
of a claim for constitutional injury. See
Buchanan-Moore, 570 F.3d at 827; Hallinan v.
Fraternal Order of Police of Chicago Lodge No. 7, 570
F.3d 811, 815 (7th Cir. 2009) (“In order to be
characterized as state action, ‘the deprivation [of
constitutional rights] must be caused by the exercise of some
right or privilege created by the State or by a rule of
conduct imposed by the [S]tate or by a person for whom the
State is responsible ... [and] the party charged with the
deprivation must be a person who may fairly be said to be a
[S]tate actor.'”) (quoting Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922, 937 (1982)). The defendants
are all private persons or companies and cannot be liable for
violating the plaintiff's free speech rights.
Court declines jurisdiction of the remaining claims and so
does not reach their merits. The claims for damage to the
plaintiff's political aspirations and for defamation are,
if valid, state law claims which fall outside this
Court's original jurisdiction. See 28 U.S.C.
§§ 1331, 1367(a) and (c)(3); RWJ Management
Co., Inc. v. BP Products North America, Inc., 672 F.3d
476, 478 (7th Cir. 2012) (“When federal claims drop out
of the case, leaving only state-law claims, the district
court has broad discretion to decide whether to keep the case
or relinquish supplemental jurisdiction over the state-law
claims. A general presumption in favor of relinquishment
applies[.]”). Those claims will be dismissed without
prejudice in the event the plaintiff wishes to raise them in
IT IS ORDERED that the plaintiff's motion for leave to
proceed in forma pauperis (Docket #2) be and the
same is hereby is GRANTED;
FURTHER ORDERED that the plaintiff's constitutional claim
be and the same is hereby DISMISSED with prejudice;
FURTHER ORDERED that the plaintiff's state law claims, if
any, be and the same are hereby DISMISSED without prejudice;
FURTHER ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim; and
COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. §
1915(a)(3) unless the plaintiff ...