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Germeten v. Planet Home Lending LLC

United States District Court, E.D. Wisconsin

January 29, 2018

DEAN VON GERMETEN, Plaintiff,
v.
PLANET HOME LENDING, LLC Defendant.

         ORDER 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

          HON. PAMELA PEPPER United States District Judge.

         On 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.

         1. Motion to Proceed Without Prepayment of Filing Fee (Dkt. No. 2)

         A. The Plaintiff's Ability to Pay the Filing Fee

         A 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).

         In the 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 benefits. Id.

         A 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.

         B. Screening the Plaintiff's Complaint

         1. Legal Standards

         In 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 standards.

         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, 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).

         To 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 (citation omitted).

         Courts 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 ...


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