United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
Joanne (Danbrova) Mellon, who is incarcerated at Taycheedah
Correctional Institution, proceeds in this matter pro
se. She filed a complaint alleging that Defendant
violated her federal rights. (Docket #1). This matter comes
before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $11.55. See 28
U.S.C. § 1915(b)(1).
court must screen complaints brought by persons seeking to
proceed in forma pauperis. Id. §
1915(e)(2)(B). The court must dismiss a complaint or portion
thereof if the person has raised claims that are legally
“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.
Id. § 1915(e)(2)(B)(i)-(iii).
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, 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 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 mere “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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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. Section 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 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,
alleges that she went to Defendant Aurora Medical
Center's (“Aurora”) emergency department on
April 13, 2016 complaining of a foot injury. (Docket #1 at
2). She filed this action because she was dissatisfied with
the care she was provided. Id. at 2-5. Plaintiff
seeks monetary damages for “pain and suffering due to
loss of leisure of normal activities, disruption in
employment and mental anguish[.]” Id. at 4.
complaint suffers from numerous defects, but one is glaring
and dispositive: the lack of a state actor. Plaintiff was not
in custody on April 13, 2016. Plaintiff's complaint
demonstrates as much; she took herself to the emergency
department and says her injury occurred at home. Id.
at 2. Further, publicly available records of the Wisconsin
Department of Corrections confirm that she was released on
supervision from a prior prison term on July 22, 2010, and
was not incarcerated (upon revocation of her supervised
release) until October 26, 2016. See Wisconsin
Department of Corrections Offender Search, Offender Detail
page for Joanne Mellon, available at:
http://offender.doc.state.wi.us/lop/detail.do (last accessed
8/24/17); State of Wisconsin v. Joanne G. Mellon,
2009-CF-31, Manitowoc County Circuit Court, Court Record
Events (Entry of October 26, 2016 indicating that
Plaintiff's supervised release was revoked); State of
Wisconsin v. Joanne G. Danbrova, 2017-CF-87, Manitowoc
County Circuit Court, Court Record Events (new felony charge
against Plaintiff filed on February 22, 2017, for her 8th OWI
committed on September 15, 2016), both cases available at:
itself is, of course, a private hospital. Thus, Plaintiff has
not connected the alleged violation of her rights with any
person acting under the color of state law. See
Buchanan-Moore, 570 F.3d at 827. Although Plaintiff
states that her complaint is made pursuant to federal law,
(Docket #1 at 4), the only relevant law would be
constitutional. Without a state actor, her claims cannot
implicate constitutional protections. At best, Plaintiff may
have claims for medical malpractice, but those are state law
claims over which this federal court has no jurisdiction.
See 28 U.S.C. §§ 1331, 1332.
Plaintiff's complaint must, therefore, be dismissed.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #2) be and the same is
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED with prejudice pursuant
to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
IS FURTHER ORDERED that the Clerk of Court document
that Plaintiff has incurred a “strike” under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from her institution trust account
the balance of the filing fee by collecting monthly payments
from Plaintiff's prison trust account in an amount equal
to 20% of the preceding month's income credited to
Plaintiff's trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds
$10 in accordance with 28 U.S.C. § 1915(b)(2). The
payments shall be clearly identified by the case name and
number assigned to this action. If Plaintiff is transferred
to another institution, ...