United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT
COUNSEL (DKT. NO. 3), AND ORDERING THE U.S. MARSHAL TO SERVE
PAMELA PEPPER, United States District Judge
plaintiff, who is proceeding without a lawyer, filed this
complaint on May 5, 2017. Dkt. No. 1. At the same time, the
plaintiff asked this court for leave to proceed without
prepayment of the filing fee, dkt. no. 2, and to appoint
counsel, dkt. no. 3. The court will grant the plaintiff's
motion to proceed without prepaying the filing fee, and will
allow her to proceed on her discrimination claims, but will
deny without prejudice her request for the appointment of
Screening of the Plaintiff's Complaint
court may allow someone to proceed without prepayment of the
filing fee if the complaint meets two conditions: (1) the
plaintiff shows that she is unable to pay the filing fee; and
(2) the case is not frivolous nor malicious, does not fail to
state a claim on which relief may be granted and does not
seek monetary relief against a defendant that is immune from
such relief. 28 U.S.C. §§1915(a) and (e)(2).
request to proceed without prepaying the filing fee, the
plaintiff states that she is not married and does not have a
job, and that she does not financially support any
dependents. Dkt. No. 2 at 1. On a weekly basis, she receives
Wisconsin Unemployment Insurance of $356. Her monthly
expenses (mortgage, car, credit card and other household
expenses) total $2, 312.18. Id. at 2. Although her
home is valued at $65, 000, she does not have any cash,
checking or savings accounts. Id. Based on the
information contained in the plaintiff's affidavit, the
court concludes that the plaintiff is unable to pay the
filing fees and costs associated with filing a lawsuit, so
the plaintiff has met the financial requirements of
1915(e)(2)(B) requires a court to dismiss a case at any time
if the court determines that it “(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.” 28 U.S.C.
§1915(e)(2)(B). To make this determination, district
courts “screen” complaints filed by
self-represented plaintiffs who request relief from the
filing fee, to determine whether they must dismiss complaints
under these standards.
complaint is frivolous, for purposes of
§1915(e)(2)(B)(i), if “it lacks an arguable basis
either in law or in fact.” Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke
v. Williams, 490 U.S. 319, 325 (1989)). The court may
dismiss a case as frivolous if it is based on an
“indisputably meritless legal theory” or where
the factual contentions are “clearly baseless.”
Id. at 32 (quoting Neitzke, 490 U.S. at
327). The standards for deciding whether to dismiss a case
for failure to state a claim under §1915(e)(2)(B)(ii)
are the same as those for reviewing claims under Federal Rule
of Civil Procedure 12(b)(6). DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). To survive dismissal, the
complaint must contain enough “[f]actual allegations
... to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Although a complaint need not contain
“detailed factual allegations, ” 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). “In evaluating whether a plaintiff's
complaint fails to state a claim, a court must take the
plaintiff's factual allegations as true and draw all
reasonable inferences in his favor.” DeWalt,
224 F.3d at 612. The court must liberally construe a pro
se plaintiff's allegations, no matter how
“inartfully pleaded.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
plaintiff alleges that between February and September of
2016, while she was employed at the Medical College of
Wisconsin as an education coordinator, the defendants
discriminated against her because of her race, created a
hostile work environment and retaliated against her when she
alerted others of the discriminatory treatment. Dkt. No. 1.
The plaintiff asserts that manager Michelle Shasha extended
the plaintiff's probationary period even though she was
told by her previous manager that she was on target with her
goals. Id. at 3. The plaintiff alleges that both
Shasha and Natalie Fleury (another manager) referred to her
language style as “African American, ” sabotaged
her job performance by changing her rules and job duties,
failed to provide her with the support given to other new
hires, denied her proper training, left her out of a
strategic planning meeting and terminated her employment
before she could take a basic computer class. Id. at
3-6. The plaintiff asserts that Cassandra Anick, a human
resources representative, failed to disclose the existence of
a “confidential line” to report work issues or
otherwise offer the plaintiff advice. Id. at 6. A
second HR representative, Christy Smith, allegedly stated at
the plaintiff's termination that the plaintiff had
previously spoken with Anick, which the plaintiff believes
was a violation of “Public Disclosure of Private
Facts.” Id. The plaintiff seeks $120, 000,
reinstatement and reassignment to another department.
Id. at 7.
the complaint liberally, as the court must do with
self-represented defendants at this early stage, the
plaintiff has alleged that she suffered an adverse employment
action or actions on the basis of her race. The court finds
that the plaintiff's complaint contains sufficient
factual allegations to proceed on claims of employment
discrimination, harassment and retaliation. See Ortiz v.
Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir.
2016) (holding that the legal standard “is simply
whether the evidence would permit a reasonable factfinder to
conclude that the plaintiff's race, ethnicity, sex,
religion, or other proscribed factor caused the discharge or
other adverse employment action.”); see also
Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)
(to state a race discrimination claim, “‘I was
turned down for a job because of my race' is all a
complaint has to say.”). At this early stage, the court
cannot conclude that the complaint is frivolous or has no
factual or legal basis.
court will grant the plaintiff's motion to proceed
without prepayment of the filing fee.
Plaintiff's Motion for Appointment of Counsel
litigants do not have a right, either constitutional or
statutory, to court-appointed counsel. Pruitt v.
Mote, 503 F.3d 647, 649 (7th Cir. 2007) (citing
Jackson v. Cty. of McLean, 953 F.2d 1070, 1071 (7th
Cir. 1992)). Title VII provides that a court may appoint an
attorney without charge “in such circumstances as the
court may deem just.” 42 U.S.C. §2000e-5(f)(1).
But the court does not have money to pay appointed lawyers to
represent people in civil lawsuits; the court relies on
volunteer lawyers, and there are not nearly enough of those
for everyone who asks.
there are not enough volunteer lawyers for the court to
appoint someone to represent every person who asks for
counsel, the Seventh Circuit Court of Appeals has instructed
district courts to weigh several factors when determining
whether appointment of counsel is warranted: (1) whether the
plaintiff has made a reasonable attempt to obtain counsel or
been effectively precluded from doing so; and (2) given the
difficulty of the case, whether the plaintiff appears
competent to litigate it herself. Pruitt, 503 F.3d
at 654-58; Sherrill v. Potter, 329 Fed.Appx. 672,
674-75 (7th Cir. 2009) (applying the Pruitt factors
in a Title VII case); Darden v. Ill. Bell Tel. Co.,
797 F.2d 497, 500-01 (7th Cir. 1986) (instructing the court
to consider “the merits of the plaintiff's claim,
the plaintiff's diligence in attempting to obtain a
lawyer, and the plaintiff's financial ability to retain
counsel” when considering a motion to appoint counsel
under Title VII (citation omitted)).
plaintiff filed a one-sentence motion, asking the court to
appoint her counsel because she is unemployed and in
“need of legal representation.” Dkt. No. 3. She
does not indicate whether she has tried to find a lawyer on
her own, despite the fact that there are organizations that
help people who can't afford representation (such as the
Legal Aid Society of Milwaukee and Legal Action of
Wisconsin), and organizations who help people find lawyers
who will represent them at reduced costs (the Milwaukee Bar
Association's Lawyer Referral Service,
www.milwbar.org, or 414-274-6768). Even if she had,
the plaintiff clearly laid out in her complaint what she
believes the defendants did to violate her rights. It appears
to the court, at this early stage, that the plaintiff is
capable of presenting her claims herself. If, as the case
proceeds, the plaintiff ...