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Engel v. Bank Mutual

United States District Court, E.D. Wisconsin

February 15, 2018

DYLAN M. ENGEL, Plaintiff,
BANK MUTUAL and PHENOM BG, Defendants.


          J. P. Stadtmueller U.S. District Judge

         Plaintiff Dylan M. Engel, proceeding pro se, filed a complaint in this matter and a motion for leave to proceed in forma pauperis. (Docket #1, #2). In order to allow a plaintiff to proceed without paying the $400 filing fee, the Court must first decide whether the plaintiff has the ability to pay the filing fee and, if not, whether the lawsuit states a claim for relief. 28 U.S.C. §§ 1915(a), (e)(2)(B). As explained below, Plaintiff's present submissions fail on both points.

         1. Motion for Leave to Proceed In Forma Pauperis

         On the question of indigence, although Plaintiff need not show that he is totally destitute, Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980), it must be remembered that the privilege of proceeding in forma pauperis “is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them, ” Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Plaintiff avers that he is unemployed, unmarried, and has no dependents. (Docket #2 at 1). He receives $740 per month in Social Security supplemental income. Id. at 2. He claims that his expenses include nearly $200 per month in rent and $70 in other household costs. Id. at 2. Plaintiff avers that he has fully paid his credit card debt each month for the last two years, but he does not report what the monthly payment is. See Id. He has $2, 000 in the bank but has no other assets, such as a car, home, or investments. Id.

         Plaintiff's sworn statements regarding his income, assets, and expenses are somewhat incoherent, leaving the Court unsure about his true financial circumstances. Most concerning for the present determination, it appears that Plaintiff's income exceeds his expenses by a wide margin, suggesting he is able to afford the filing fee. Further, according to Plaintiff, he has enough money in his bank account to immediately pay the filing fee in full. While the Court sympathizes with Plaintiff's apparently limited financial means, difficulty in paying the fee does equate to indigence. See Wolinsky v. Bd. of Educ. of City of Chicago, No. 95 C 6487, 1996 WL 66003, at *1 (N.D. Ill. Feb. 12, 1996) (denying leave to proceed in forma pauperis where the plaintiff had social security income and funds in a bank account). The federal in forma pauperis statute is designed to ensure that indigent litigants have meaningful access to the federal courts, not that any pro se litigant may assert his legal claims for free. See Neitzke v. Williams, 490 U.S. 319, 324 (1989).

         Because Plaintiff's financial circumstances could be better explained, the Court will grant him an opportunity to submit an amended motion for leave to proceed in forma pauperis rather than deny him that status outright. His amended motion should clearly state every source of his monthly income, identify all of his monthly expenses, and report any assets he may have. The motion must be filed no later than March 8, 2018. If no motion is filed, the Court will direct Plaintiff to pay the $400 filing fee in full.

         2. Screening Plaintiff's Complaint

         In addition to requiring that Plaintiff amend his motion for leave to proceed in forma pauperis, the Court will also direct him to submit an amended complaint. When a plaintiff asks leave to proceed in forma pauperis, the Court must screen the complaint and dismiss it or any portion thereof if it 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. 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The Court may 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.

         To state a cognizable claim under the federal notice pleading system, a plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary to plead specific facts; rather, the plaintiff's 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 (citation omitted).

         Plaintiff's complaint falls short of even this low bar, as his allegations are nearly indecipherable. He appears to sue his credit card issuer, Bank Mutual, and a nutritional supplement purveyor or manufacturer, Phenom BG, for placing and maintaining fraudulent charges to his credit card. To highlight its interpretive difficulty, the Court will reproduce the operative portions of his complaint in full:

Observation on cyber security breach or credit card fraud with Bank Mutual card. 72.95 charge transaction placed at UWMKE before NASAS CAPTAIN KELLY held plenary on his endurance text with A FACEBOOK LINK ON A SURFACE BOOK. Phenom is a supplement company, offering Krill omega 3 oil, or vitamin supplements. The certificate at by/one-with Bank Mutual credit appeared as insecure, malware, fraudulent, or a breach to Bank Mutual credit. 4 companies, which are unreal nonexistent were, on the bill, falsified transaction charges.
I had to file a form evaluation with Bank Mutual staff, this is now posted, and not related besides being the same business Bank Mutual. I filed a “world class” survey over the phone. The amount of charges haven't been reduced, Bank Mutual credit is unresponsive to falsified transaction charges being removed. Over the phone this had been identified with BMC Credit, as a breach in cyber securities w/ UWMKE, Microsoft Systems, and is seriously incorrectly handled at this time.

(Docket #1 at 2-3). In the “Relief Wanted” section, Plaintiff seems to request that the allegedly fraudulent credit charges be removed from his account.See Id. at 4.

         Plaintiff cites no basis for the Court's subject-matter jurisdiction over his claims. A federal court's jurisdiction is generally limited to two types of suits: (1) those between citizens of different States, called “diversity” jurisdiction, pursuant to 28 U.S.C. § 1332; and (2) those involving causes of action arising ...

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