United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
plaintiff has filed a pro se complaint alleging
racial discrimination. (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 [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to 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 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). 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. 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,
plaintiff alleges that the defendants began discriminating
against him on the basis of race in May 2016. (Docket #1 at
2). He claims that the defendant Joe Haider
(“Haider”), his landlord, made statements
indicating that he did not want to rent to black people, but
instead preferred renting to young, white college students.
Id. Haider “slowly forc[ed] black residents
out completely.” Id. The plaintiff couches his
discrimination alleged in the federal Fair Housing Act.
Id. at 3; 42 U.S.C. § 3601 et seq.
Court has liberally construed his allegations, but
nevertheless finds that the plaintiff's complaint fails
to raise a viable claim for relief. His explanation of the
defendants' discriminatory practices are generic. Other
than vaguely referencing Haider's allegedly improper
practices, the plaintiff gives no indication of what Haider
did to the plaintiff himself, when it occurred, and what
injury it caused. Though the bar for pleading facts is not
high, it is also not illusory; the plaintiff has not pleaded
much more than “labels and conclusions” which are
insufficient to state a valid cause of action.
Iqbal, 556 U.S. at 678.
Court must strike the current complaint, but it will afford
the plaintiff an opportunity to submit an amended complaint
correcting the above-described defects. If the plaintiff
wants to proceed, he must file an amended complaint on or
before March 27, 2017. Failure to file an amended complaint
within this time period may result in dismissal of this
action. The plaintiff is advised that the amended complaint
must bear the docket number assigned to this case and must be
labeled “Amended Complaint.” The plaintiff is
further advised that a successful complaint alleges
“the who, what, when, where, and how: the first
paragraph of any newspaper story.” See DiLeo v.
Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that,
in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
see also Pintado v. Miami-Dade Housing Agency, 501
F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's averments against his
adversary.'”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463
F.3d 1210, 1215 (11th Cir. 2006)). If an amended complaint is
received, it will be screened pursuant to 28 U.S.C. §
final note, the Court will grant the plaintiff's motion
to proceed in forma pauperis. (Docket #2). The
privilege to proceed without payment of costs and fees
“is reserved to the many truly impoverished litigants
who…would remain without legal remedy if such
privilege were not afforded to them.” Brewster v.
North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir.
1972). The sworn statements in the plaintiff's motion
show that he is unemployed and that his expenses match his
income. (Docket #2). The plaintiff therefore qualifies as
indigent and may proceed without prepaying the filing fee.
IT IS ORDERED that the plaintiff's complaint (Docket #1)
be and the same is hereby STRICKEN; IT IS FURTHER ORDERED
that the plaintiff shall file an amended complaint on or
before March 27, 2017; and IT IS FURTHER ORDERED that the