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 13, 2017, the plaintiff, who is proceeding without a
lawyer, filed her complaint. Dkt. No. 1. Along with the
complaint, the plaintiff filed a motion asking the court to
allow her to proceed with his case without paying the filing
fee. Dkt. No. 2. For the reasons explained below, the court
will dismiss the plaintiffs complaint without prejudice. The
court will order her to file an amended complaint by March
17, 2017, more fully explaining the factual basis for her
claims against the Kohn Law Firm. The court will defer ruling
on the plaintiff's motion to proceed in forma
pauperis until the court reviews the amended complaint,
and determines whether the plaintiff can proceed on any of
the claims in it.
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." For this
reason, district courts "screen" complaints filed
by self-represented plaintiffs, to determine whether the
complaint must be dismissed under these standards.
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 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).
in order for a court to allow a plaintiff to proceed without
paying the filing fee, the court must make two
determinations: whether the plaintiff is unable to pay the
filing fee, and whether the case is frivolous or malicious.
28 U.S.C. §§1915(a) and (d).
state a cognizable claim for relief under the federal notice
pleading system, the plaintiff must provide a "short and
plain statement of the claim showing that [she] is entitled
to relief[.]" Fed.R.Civ.P. 8(a)(2). The plaintiff need
not 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 Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conlev v. Gibson, 355 U.S. 41, 47 (1957)). 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). If
there are well-pleaded factual allegations, the court must
"assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief."
complaint, the plaintiff alleges that she purchased "a
Chapter 7 product from you." Dkt. No. 1, at 3. The
plaintiff does not explain who she is referring to as
"you." The court believes that she may be referring
to the United States Bankruptcy Court, because she listed
"US Bankruptcy" as a defendant. According to the
plaintiff, the "product you sold to me was not a true
product, " and she states that "[m]y grievance with
you is the amount of time I had to wait to pay off my
debt." idat 3-4. She states that "it took
twenty-two years to paId[sic] off a debt which could have
been paidin less time." Id. at 3. The plaintiff
also alleges that at some time after the plaintiff filed for
Chapter 7 relief, the Kohn Law Firm began to contact her,
apparently related to a debt. The plaintiff alleges that the
Kohn Law Firm "came after me" and "profiled me
through harassment. They would call me and say anti-black
slogans, they even went straight to my payroll check and
start to garnishing right away." Id. at 4. The
plaintiff seeks $250, 000 in damages. Id.
are several problems with the plaintiffs complaint. First,
she cannot sue the U.S. Bankruptcy Court. That court is part
of the judicial branch of the Federal Government and,
"[a]bsent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit." Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).
For that reason, the court dismisses all of the
plaintiff's claims against the U.S. Bankruptcy Court.
the court cannot find a federal cause of action arising from
the plaintiffs factual allegations. She does not allege
violations of the United States Constitution or federal laws.
the plaintiff and the Kohn Law Firm both appear to be
Wisconsin citizens, which means that the plaintiffs case
cannot proceed in federal court under the diversity statute
(28 U.S.C. §1332).
the complaint does not provide detail for the allegations the
plaintiff makes against the Kohn Law Firm. To the extent that
the court can figure out the sequence of events the plaintiff
refers to, it appears that those events began in 1992, over
twenty-four years ago, which raises the question of whether
the applicable statutes of limitations bar all of her claims
against the Kohn Law Firm.
reasons explained above, the court will dismiss the
plaintiffs complaint without prejudice under
§1915(e)(2)(B). Because the plaintiff is proceeding
without a lawyer, however, the court will give her one
opportunity to file an amended complaint stating the full
factual basis for her claims against the Kohn Law Firm, so
that she can allege the specific facts that are relevant to
the claims she seeks to bring against the Kohn Law Firm and
the injuries she believes she has suffered by its conduct.
The court will give the plaintiff a specific amount of time
in which to file her amended complaint. If, within that time,
the plaintiff does not file an amended complaint, the court
will dismiss her case without prejudice. The court will defer
ruling on the plaintiff's motion to proceed in forma
pauperis until the court determines whether the
plaintiff can proceed on the claims in her amended complaint,
if she chooses to file one.
court ORDERS that the plaintiffs complaint
is DISMISSED WITHOUT PREJUDICE under 28
U.S.C. §1915(e)(2)(B), because the U.S. Bankruptcy Court
is immune from suit and because the complaint fails to state
a claim on which relief can be granted against the Kohn Law
court ORDERS that the plaintiff must file an
amended complaint on or before MARCH 17,
2017. If the plaintiff does not file her amended
complaint by that date, the court will dismiss her