United States District Court, E.D. Wisconsin
STEPHEN C. FELLS, Plaintiff,
DIVISION OF VOCATIONAL REHABILITION, LEA WORACHEK COLLINS, and PAMELA ZIEGLER, Defendants.
Stadtmueller U.S. District Judge
23, 2017, the plaintiff filed a pro se complaint
challenging certain determinations made by the Wisconsin
Division of Vocational Rehabilitation relating to his receipt
of vocational rehabilitation services. (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 filed in forma pauperis if it
raises claims that are “frivolous or malicious, ”
fails to state a claim upon which relief may be granted, or
seeks 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 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 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
that, accepted as true, “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.
plaintiff's complaint is lacking in organization and
detail, but, mindful of its responsibility to construe
pro se pleadings liberally, see Marshall v.
Knight, 445 F.3d 965, 969 (7th Cir. 2006), the Court
will endeavor to describe the facts alleged and identify any
plausible claims based thereon. It appears the plaintiff is,
or was, disabled and therefore qualified for assistance from
defendant Wisconsin Division of Vocational Rehabilitation
(“DVR”). (Docket #1 at 2-3). The plaintiff
alleges that defendants Pamela Ziegler
(“Ziegler”) and Lea Collins Worachek
(“Worachek”), presumably employees of DVR,
wrongfully refused to amend his DVR work plan despite
instructions from an administrative law judge to do so, and
then wrongfully closed his case. Id. at 2. It
appears the plaintiff sought amendment to his work plan so
that he could pursue self-employment as a dump truck owner
and operator. Id. at 2-3. He claims that the DVR
wrongfully labeled him as not creditworthy, that Worachek
“hates” him and has taken a personal interest in
sabotaging his plans, and that some unnamed people at the
DVR, possibly including Worachek, hypnotized him.
Id. at 3. The plaintiff asks that his DVR case be
reopened, that a dump truck and insurance be purchased for
him, and that he be compensated for six years of lost income.
Id. at 4.
plaintiff indicates that he is suing for a violation of
federal law under 28 U.S.C. § 1331, see id.,
but has not identified which federal law he believes has been
violated. Nonetheless, the Court will sift through the facts
alleged to determine which, if any, federal laws are
implicated by the plaintiff's complaint.
is a state agency that receives federal funding to provide
vocational rehabilitation services under the Rehabilitation
Act, 29 U.S.C. §§ 720-765, in return for complying
with certain federal regulatory guidelines. See Schmidt
v. Wisconsin Div. of Vocational Rehab., 502 F.App'x
612, 613 (7th Cir. 2013). The Rehabilitation Act requires
vocational rehabilitation counselors to work with eligible
participants to jointly develop an “individualized plan
for employment” (IPE) and identify the resources
necessary to achieve their goals. See 29 U.S.C.
§§ 721(a)(9), 722(b)(1)(A). Determinations made by
DVR personnel that affect the provision of vocational
rehabilitation services to eligible participants can be
challenged in an administrative due-process hearing.
Id. § 722(c)(5)(A). In Wisconsin, a party who
is unhappy with the hearing officer's decision can seek
review of that decision by the DVR administrator, and such
review results in a final decision. See Wis. Adm.
Code DWD § 75.19. Finally, a party aggrieved by a final
decision of the DVR may bring a civil action for review of
the decision in any state court of competent jurisdiction or
in a district court of the United States of competent
jurisdiction without regard to the amount in controversy.
Id. § 722(c)(5)(J).
plaintiff has plausibly alleged that he is entitled to review
in this Court of determinations made by DVR personnel that
affected his access to vocational rehabilitation services.
The DVR determinations he disputes- the decision not to amend
his IPE to allow him to pursue ownership of a dump truck and
the closure of his case-directly relate to the provision of
vocational rehabilitation services. The DVR grievance
process, which culminates in the option to pursue a civil
action, is designed to assist DVR participants who, like the
plaintiff, are dissatisfied with decisions made by the
counselors assigned to help them. And while it is unclear
from the complaint whether the plaintiff sufficiently
exhausted the administrative grievance process within DVR,
the exhaustion requirement in the Rehabilitation Act is a
claim-processing rule rather than a jurisdictional barrier,
see Schmidt, 502 F.App'x at 614, and therefore
the plaintiff's failure to affirmatively plead exhaustion
is not grounds for dismissal at this juncture.
in order to allow a pro se plaintiff to proceed
without prepaying the filing fee, the court must decide not
only whether the plaintiff's claims are frivolous but
also whether the plaintiff has the ability to pay the filing
fee. 28 U.S.C. §§ 1915(a), (e)(2)(B)(I). The
plaintiff filed, along with his complaint, a motion to
proceed in forma pauperis in which he avers that he
is unmarried and unemployed. (Docket #2 at 1). His total
monthly income is $830.00, though he does not indicate from
where that income is earned. Id. at 2. His itemized
expenses, arising from rent, credit card payments, household
expenses, and insurance, total more than $900.00 per month.
Id. at 2-3. He owns a vehicle, which he values at
$6, 000. Id. at 3. He also has a total of $317.00 in
two bank accounts. Id. at 3-4. On these averments,
the Court finds that the plaintiff has demonstrated that he
cannot prepay the $350 filing fee and $50 administrative fee.
IT IS ORDERED that the plaintiff's motion for leave to
proceed in forma pauperis (Docket #2) be and the
same is hereby GRANTED;
FURTHER ORDERED that the United States Marshal shall serve a
copy of the complaint and this order upon the defendants
pursuant to Federal Rule of Civil Procedure 4. The plaintiff
is advised that Congress requires the U.S. Marshals Service
to charge for making or attempting such service. 28 U.S.C.
§ 1921(a). The current fee for waiver-of-service
packages is $8.00 per item mailed. The full fee schedule is
provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
Although Congress requires the Court to order service by the
U.S. Marshals Service precisely because in ...