United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
plaintiff Laura Smith (“Smith”) filed a pro
se complaint alleging that certain of her rights were
violated. (Docket #1). This matter comes before the court on
Smith's motion for leave to proceed in forma
pauperis. (Docket #2). The Court will grant Smith's
motion in light of her representations therein about her
income and expenses. Id. Notwithstanding the payment
of any filing fee, however, 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. §
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 Atl. 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)).
alleges that Nate Blohm (“Blohm”) “violated
me and my children['s] rights and put me and my kids in
harm's way.” (Docket #1 at 2). She further alleges
that “Jaquita Peel [(“Peel”)] made false
accusations against me and tried to take my visitation visits
away because she discriminated against me and my
children.” Id. As to both of those defendants,
Smith states that “[t]hey said foul things about me and
my kids, [and] they are disrespectful and my kids are not
safe in someone else['s] care.” Id.
“This took place at the office, ” says Smith,
“and they don't do their job because they don't
like me at all.” Id.
not clear to whom Smith's remaining allegations are
directed; she does not connect them to Blohm, Peel, or
Milwaukee Children's Community Services
(“MCCS”). Id. at 3. Nevertheless, Smith
goes on to state that “they” took her children
away from her and that she believes her children are not
safe. Id. at 3. Smith says this lawsuit is brought
pursuant to federal law, but cites no such laws or
constitutional provisions which the defendants may have
violated. See generally Id. For relief, Smith
requests money damages for “distress, ” that the
individual defendants be fired from their jobs, and that her
children be returned to her care. Id. at 4.
fails to state any viable claims for relief for two reasons.
First, she states only that her “rights” were
violated, without connecting her complaint to any federal
law. Assuming Smith meant to reference her constitutional
rights, those may only be enforced as against state actors.
Buchanan-Moore, 570 F.3d at 827. Smith's only
indication of government involvement is an assertion that
MCCS is somehow connected to the “child protection
service.” (Docket #1 at 2). However, the address she
provides is not of a state agency, but rather the Milwaukee
76th Street Community Services building, operated by
Children's Hospital of Wisconsin. See
Children's Hospital of Wisconsin, Locations,
mmunity-services/. This is a private organization which is
not subject to Section 1983 liability. If Blohm and Peel work
for MCCS, then they too would be immune from Smith's
even assuming the defendants were state actors, Smith's
claims are not grounded in federal law. Again, Smith offers
no direction on the source of her “rights” which
were allegedly violated. Her allegations do not support any
constitutional claims; vague references to “disrespect,
” “discrimination, ” and “false
accusations” do not implicate any protections provided
by the Bill of Rights. Rather, they at best rest on a cause
of action for the infliction of emotional distress, which is
a state law claim that must be brought in state court. In the
same vein, the underlying theme of Smith's complaint is
that her children were taken from her by the state due to
some alleged problem with Smith's parenting, and the
children are now living in a different home. If Smith desires
to have her children returned to her, she must raise the
matter in a Wisconsin family court. This Court, a federal
court, has no power to grant her that relief.
light of the foregoing, Smith's complaint must be
IT IS ORDERED that the plaintiffs motion for
leave to proceed in forma pauperis (Docket #2) be
and the same is hereby is GRANTED;
IS 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 ...