United States District Court, E.D. Wisconsin
SUSAN M. BORN, Plaintiff,
MILWAUKEE COUNTY, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and STATE OF WISCONSIN EQUAL RIGHTS DIVISION, Defendants.
Stadtmueller, U.S. District Judge.
filed a pro se complaint for alleged violations of
her various rights. (Docket #1). This matter comes before the
court on Plaintiff's motion for leave to proceed in
forma pauperis. (Docket #2). In order to allow a
plaintiff to proceed without paying the filing fee, the Court
must first decide whether the plaintiff has the ability to
pay the fee. 28 U.S.C. §§ 1915(a). Plaintiff avers
that she earns no salary and collects a monthly pension of
approximately $1, 500. (Docket #2 at 2). Plaintiff's
expenses exceed $2, 500. Id. at 2-3. Plaintiff's
sworn statements reveal that she would be unable “to
provide h[er]self . . . with the necessities of life”
if required to pay the $400.00 filing fee in this matter.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948); Brewster v. N. Am. Van Lines, Inc.,
461 F.2d 649, 651 (7th Cir. 1972). The Court will therefore
grant her motion for leave to proceed in forma
notwithstanding the payment of any filing fee, the Court must
dismiss the complaint of a person proceeding in forma
pauperis if it raises claims that are “frivolous
or malicious, ” which 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). A claim 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) (citations omitted).
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. 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,
alleges that Defendant Milwaukee County (the
“County”) and “various employees”
thereof violated her rights as a disabled person, to
“equal pay for equal work, ” to overtime, to
“be free of harassment [and] humiliation at work,
” and to “health [and] safety.” (Docket #1
at 2-3). Plaintiff further alleges that the Defendant United
States Equal Employment Opportunity Commission
(“EEOC”) and its investigator Shannon Lemke (not
a named defendant) failed to appropriately investigate her
complaints against the County. Id. at 3. Finally,
Plaintiff maintains that the “State EEOC, ” here
the Defendant State of Wisconsin Equal Rights Division
(“ERD”), is also somehow responsible for the
inadequate investigation. Id.
complaint fails to state any viable claims for relief.
Plaintiff pleads only legal conclusions about the
County's conduct. While she need not supply an extensive
factual basis for her claims, the complete lack of facts
means that Plaintiff has offered no well-pleaded allegations
which may be presumed true. Iqbal, 556 U.S. at 679.
Likewise, the Court has no ability to determine whether such
facts would “plausibly give rise to an entitlement to
relief.” Id. Properly pleaded facts would
illuminate whether Plaintiff has stated claims pursuant to
various federal laws, including the Americans with
Disabilities Act, the Fair Labor Standards Act, or Title
VII's anti-harassment provisions. They might also raise
concerns about procedural issues, such as the statute of
limitations. Plaintiff references various periods for the
alleged wrongful conduct, from “the early 1990s,
” to “2010-2015, ” and “particularly
2013-2015.” (Docket #1 at 4).
the other defendants, Plaintiff may not proceed regardless of
any increased factual specificity. Both the EEOC and ERD are
arms of the federal and Wisconsin governments, respectively.
As such, they enjoy sovereign immunity and cannot be sued in
federal court without affirmatively waiving that immunity.
United States v. Mitchell, 445 U.S. 535, 548 (1980);
Benning v. Bd. of Regents of Regency Univ., 928 F.2d
775, 777 (7th Cir. 1991). The Court is not aware of any such
waiver under the circumstances of this case. The EEOC and ERD
must, therefore, be dismissed from this action.
Court will afford Plaintiff an opportunity to amend her
complaint to cure the deficiencies described in this Order.
If she wishes to proceed, she must file an amended complaint
on or before January 30, 2018. Failure to
file an amended complaint within this time period will result
in dismissal of this action. Civ. L. R. 41(c).
amended complaint must bear the docket number assigned to
this case and must be labeled “Amended
Complaint.” The 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 Court of
Appeals 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). If an amended complaint is received,
the Court will screen it pursuant to 28 U.S.C. §
IT IS ORDERED that Plaintiff's motion to
proceed in forma pauperis (Docket #2) be and the
same is hereby GRANTED;
IS FURTHER ORDERED that Defendants United States
Equal Employment Opportunity Commission and State of
Wisconsin Equal Rights Division be and the same are hereby
DISMISSED from this action; and
IS FURTHER ORDERED that Plaintiff shall file an
amended complaint in accordance with the terms of this Order
on or before January 30, 2018, or this
action will be ...