United States District Court, E.D. Wisconsin
ORDER REQUIRING PLAINTIFF TO FILE AN AMENDED
COMPLAINT BY MARCH 17, 2017, OR FACE DISMISSAL
PAMELA PEPPER United States District Judge.
February 7, 2017, the plaintiff, who is representing himself,
filed a complaint along with a motion asking the court to
allow him to proceed in forma pauperis. Dkt. No. 2.
For the reasons explained below, the court will hold the
plaintiff's motion to proceed in forma pauperis
in abeyance and will order him to file an amended complaint
by March 17, 2017, more fully explaining the factual basis
for his complaint.
court may allow a litigant to proceed without prepayment of
the filing fees if two conditions are met: (1) the litigant
is unable to pay the filing fee; and (2) the case is not
frivolous nor malicious, does not fail to state a claim on
which relief may be granted, and does not seek monetary
relief against a defendant that is immune from such relief.
28 U.S.C. §§1915(a) and (e)(2).
request to proceed without paying the filing fee, the
plaintiff states that he is not married, is employed, and
does not financially support any dependents. Dkt. No. 2, at
1. He receives $2, 087 per month in income from his
employment with Goodwill. Id. at 2. He states that,
in the last twelve months, he also has received an additional
$950 from Goodwill and $1, 033 in Social Security. He has
$500 in a checking or savings account. Id. at 3. He
lists no other property or assets. Id. 3-4. The
plaintiff states that his total monthly expenses are $1, 880
per month, comprised of $649 in rent, $300 in household
expenses, $123 in life insurance, $117 in car insurance, $40
in federal taxes, and $300 in utilities. Id. at 1-2.
After deducting the plaintiff's monthly expenses from his
monthly income, the plaintiff is left with $207. Based on the
information contained in the plaintiff's application, the
court concludes that the plaintiff is unable to pay the
filing fees and costs associated with this action, so the
plaintiff has met the financial requirements of
1915(e)(2)(B) requires a court to dismiss a case at any time
if the court determines that it “(i) is frivolous or
malicious; (ii) fails to state a claim upon which relief may
be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” Thus,
district courts “screen” complaints filed by
self-represented plaintiffs who request relief from the
filing fee, to determine whether they must dismiss complaints
under these standards.
complaint is frivolous, for purposes of
§1915(e)(2)(B)(i), if “it lacks an arguable basis
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)). The court may
dismiss a case as frivolous if it is based on an
“indisputably meritless legal theory” or where
the factual contentions are “clearly baseless.”
Id. at 32 (quoting Neitzke, 490 U.S. at
327). The standards for deciding whether to dismiss a case
for failure to state a claim under §1915(e)(2)(B)(ii)
are the same as those for reviewing claims under Federal Rule
of Civil Procedure 12(b)(6). DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). To survive dismissal, the
complaint must contain enough “[f]actual allegations .
. . to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Although a complaint need not contain
“detailed factual allegations, ” a complaint
“that offers ‘labels and conclusions' or
‘a 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). “In evaluating whether a plaintiff's
complaint fails to state a claim, a court must take the
plaintiff's factual allegations as true and draw all
reasonable inferences in his favor.” DeWalt,
224 F.3d at 612. The court must liberally construe a pro
se plaintiff's allegations, no matter how
“inartfully pleaded.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
plaintiff's complaint contains almost no factual
allegations. It simply alleges that the defendant's
general manager “discriminated and showed bias in job
placement.” Dkt. No. 1, at 2. The plaintiff attached to
the complaint his Notice of Right To Sue letter and a short
narrative statement, but neither document sheds light on what
the defendant did that makes the plaintiff believe that they
discriminated against him based on age and/or race. The
plaintiff's narrative statement suggests that the
plaintiff's claim relates to a dispute over the
plaintiff's ability to continue driving a hotel van. Dkt.
No. 1-1, at 2. According to the plaintiff's statement,
after “another driver lost his van driving privileges,
” the defendant offered him a different job.
Id. The plaintiff insists that he was not offered
another job after he lost his driving privileges, although
the parties appear to dispute this question. Id.
From the totality of the information the plaintiff has filed,
the court infers that the plaintiff believes some form of
discrimination motivated the defendant's alleged decision
not to offer him further employment options after he lost his
van driving privileges. But right now, the court does not
have enough information in the record for the court to
determine the basis for the defendant's alleged
discrimination or to evaluate whether the plaintiff's
claims have an arguable basis in law or fact.
Denton, 504 U.S. at 31.
court will give the plaintiff an opportunity to amend his
complaint, so that he can allege the specific facts that are
relevant to the claims he seeks to bring against the
defendant and the type of discrimination he believes he has
suffered. The court will give the plaintiff a specific amount
of time in which to file his amended complaint. If, within
that time, the plaintiff does not file an amended complaint,
the court will dismiss his case without prejudice.
court ORDERS that the plaintiff must file an amended
complaint on or before MARCH 17, 2017. If the plaintiff does
not file his amended complaint by that date, the court will
dismiss the ...