United States District Court, E.D. Wisconsin
GRANTING IN PART PLAINTIFF'S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING AS
MOOT THE PLAINTIFF'S MOTIONS (DKT. NOS. 7, 8, 19, 24, 28,
39 AND 50), DENYING AS MOOT THE DEFENDANT'S MOTION TO
DISMISS (DKT. NO. 13), GRANTING THE DEFENDANT'S MOTION TO
STAY DISCOVERY AND MOTION FOR PROTECTIVE ORDER (DKT. NO. 49),
AND GIVING THE PLAINTIFF A DEADLINE OF MARCH 30, 2018 BY
WHICH TO FILE AN AMENDED COMPLAINT
PAMELA PEPPER United States District Judge.
February 6, 2017, the plaintiff-representing himself-filed a
complaint against Planet Home Lending, LLC. Dkt. No. 1. He
also filed a motion for leave to proceed without prepaying
the filing fee. Dkt. No. 2. The court did not act promptly on
the plaintiff's request, which has caused extensive
litigation even though the defendant has not been served. The
plaintiff has filed several motions, and the defendant has
filed a motion to dismiss and a motion to stay discovery.
This order addresses the plaintiff's motion for waiver of
the filing fee, screens the plaintiff's complaint and,
because the complaint does not state a claim upon which
relief can be granted, gives the plaintiff a deadline by
which to file an amended complaint.
Motion to Proceed Without Prepayment of Filing Fee (Dkt. No.
The Plaintiff's Ability to Pay the Filing Fee
district court may authorize a plaintiff to proceed without
prepaying the $350 filing fee and $50 administrative fee to
start a civil lawsuit if the plaintiff submits an affidavit
listing his assets, indicating that he is unable to pay the
fees and stating his belief that he is entitled to the relief
he seeks. 28 U.S.C. §1915(a). Title 28 U.S.C. §1915
“is designed to ensure that indigent litigants have
meaningful access to the courts.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
plaintiff's affidavit, he does not list any dependents.
Dkt. No. 2 at 2. He states that he has a total monthly income
of $818.00, consisting of $735.00 per month from Social
Security Disability payments and $83.00 per month from
Wisconsin State Disability payments. Id. He lists a
monthly mortgage payment of $341.00 and other household
expenses of between $300 and $400 per month, for total
monthly expenses of $650-700 per month. Id. at 3.
The plaintiff asserts that he owns a 1995 Ford F-150 pick-up
truck worth about $900, and that he owns a home worth $34,
000 with approximately $8, 000 of equity. Id. The
plaintiff states that he has a checking account containing
$1, 400. Id. He concludes by indicating that he is
disabled, with no source of income other than his disability
district court has the discretion to order a plaintiff to pay
a portion of the filing fee, and to waive the remainder, when
it finds that the plaintiff cannot pay the full expenses but
can pay part of it. See Longbehn v. United States,
160 F.3d 1082-83 (7th Cir. 1999). With monthly income of over
$800, monthly expenses of $700 or less, and a checking
account with a balance of $1, 400 as of the date of the
affidavit, the court finds that the plaintiff has the ability
to pay at least a portion of the filing fee.
Screening the Plaintiff's Complaint
enacting 28 U.S.C. §1915-the federal statute that gives
courts the ability to waive all or part of a filing
fee-“Congress recognized . . . that a litigant whose
filing fees and court costs are assumed by the public, unlike
a paying litigant, lacks an economic incentive to refrain
from filing frivolous, malicious, or repetitive
lawsuits.” Neitzke, 490 U.S. at 324.
Therefore, §1915(e)(2)(B) requires a court to dismiss a
case filed by an unrepresented plaintiff at any time if the
court determines that the complaint “(i) is frivolous
or malicious; (ii) fails to state a claim upon which relief
may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” For this
reason, district courts “screen” complaints filed
by self-represented plaintiffs seeking fee waivers, to
determine whether the courts must dismiss them under these
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31, 112 S.Ct. 1728 (1992); Felton v. City of
Chicago, 827 F.3d 632, 635 (7th Cir. 2016) (citing
Neitzke, 490 U.S. at 325). At the screening stage,
the court accepts the factual allegations in the complaint as
true and draws all reasonable inferences in favor of the
plaintiff. Hotchkiss v. David, Case No. 16-3934,
2017 WL 4964714 at *3 (7th Cir., Nov. 1, 2017). The Supreme
Court has explained that a court may dismiss a claim as
factually frivolous if it is “clearly baseless, ”
“fanciful, ” “fantastic, ”
“delusional, ” “irrational, ” or
“wholly incredible.” Felton, 827 F.3d at
635 (citing Denton, 504 U.S. at 32-33). A court may
dismiss a claim as legally frivolous if it is “based on
an indisputably meritless legal theory.” Id.
(citing Neitzke, 490 U.S. at 327-28). The court,
however, may not dismiss a claim as frivolous simply because
it finds that “the plaintiff's allegations are
unlikely.” Johnson v. Stovall, 233 F.3d 486,
489 (7th Cir. 2000) (citing Denton, 504 U.S. at 33).
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead
specific facts, but his statement must “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)). 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
liberally construe the pleadings of “pro
se” litigants (that is, those litigants who
proceed without a lawyer), and they hold pro se
complaints, however inartfully pleaded, to less stringent
standards than formal pleadings drafted by lawyers.
Erikson v. Pardus, 551 U.S. 89, 93 (2007). Courts
are required to allow plaintiffs for whom they've waived
all or part of the filing fee leave to amend their complaints
“at least once when Rule 15(a) would ...