United States District Court, E.D. Wisconsin
GRETCHEN M. MARES, Plaintiff,
UNITED STATES, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE
February 22, 2018, Plaintiff filed a pro se
complaint alleging that her civil rights were violated.
(Docket #1). This matter comes before the court on
Plaintiff's petition to proceed in forma
pauperis. (Docket #2). Notwithstanding the payment of
any filing fee, the Court must dismiss a complaint if it
raises claims that are “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); 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)
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 [she] is entitled
to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary
for a 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 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). 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. To state a claim for relief
under 42 U.S.C. § 1983, a plaintiff must allege that: 1)
she was deprived of a right secured by the Constitution or
laws of the United States; and 2) the deprivation was visited
upon her by a person or persons acting under color of state
law. Buchanan-Moore v. County of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N.
Fond du Lac, 384 F.3d 856, 861 (7th Cir.
2004)); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980). The Court is obliged to give a pro se
litigant's 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, 106 (1976)).
allegations are nonsensical, fantastical, and barely
coherent. Plaintiff alleges that various of her
constitutional rights have been violated by her
“non-consensual participa[tion] in a discriminatory . .
. federal program/school[.]” (Docket #1 at 2). She does
not explain what the “program/school” is, but
implies that Defendant is responsible for it (she lists the
defendant as “United States, c/o Gregory J.
Hanstaad”). Id. at 1. Plaintiff does state
that the “program/school” started during her
prior employment at a local law firm, von Briesen &
Roper, SC Id. at 2. She asserts that, whatever this
“program/school” is, it is a fraud. Id.
“program/school” apparently causes a
“continued and imminent threat to the life, health and
well-being” of Plaintiff. Id. at 3. The
directors of the “program/school” are alleged to
“terroriz[e] and tortur[e]” Plaintiff by various
means. Id. She says that “the media and others
are required to watch on in her home, car, etc., including in
her bedroom, shower, toilette [sic] creating a degrading and
highly stressful environment[.]” Id. Plaintiff
further alleges that “[i]t has been confirmed by the
press” that Defendant has for years been torturing her
via a device inserted somewhere in her ear. Id. at
4. The device allegedly has some bacteria on it which causes
various medical issues. Id. at 4-5. For relief,
Plaintiff wants an emergency injunction to end her
participation in the “program/school.”
Id. at 6.
case may not proceed for two reasons. First, courts may
dismiss claims based on allegations that are “obviously
and knowingly false.” Gladney v. Pendleton Corr.
Facility, 302 F.3d 773, 774 (7th Cir. 2002); see
also Edwards v. Snyder, 478 F.3d 827, 829-30 (7th Cir.
2007). Moreover, a suit may be dismissed “because the
facts alleged are so . . . unbelievable, even though there
has been no evidentiary hearing to determine their truth or
falsity.” Gladney, 302 F.3d at 774; see
also Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000);
Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001);
Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir.
1990). “[N]o evidentiary hearing is required in a
prisoner's case (or anyone else's, for that matter)
when the factual allegations are incredible.”
Gladney, 302 F.3d at 774 (internal citations
omitted). Plaintiff's allegations are clearly of the
incredible variety and are beyond fantastic and delusional.
See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
Consequently, this case must be dismissed as frivolous.
Gladney, 302 F.3d at 775 (citing Okoro v.
Bohman, 164 F.3d 1059, 1062-64 (7th Cir. 1999) (“a
frivolous suit does not engage the jurisdiction of the
result should come as no surprise to Plaintiff. On October
28, 2016, she filed a similarly incoherent and delusional
complaint which was assigned to this branch of the Court.
Gretchen M. Mares v. United States [Mares I],
16-CV-1445-JPS (E.D. Wis.) (Docket #1). That action was
dismissed on the same grounds. Id. (Docket
#6). Plaintiff appealed, but her appeal
was dismissed for failure to pay the docketing fee.
Id. (Docket #20).
prior action supplies the second basis for dismissal of this
case: res judicata. The doctrine of res judicata, or claim
preclusion, prohibits a party from re-litigating a case which
had previously been dismissed with prejudice. Czarniecki
v. City of Chicago, 633 F.3d 545, 548 (7th Cir. 2011).
Res judicata “has three ingredients: a final decision
in the first suit; a dispute arising from the same
transaction (identified by its ‘operative facts');
and the same litigants (directly or through privity of
interest).” Id. (quotation omitted). All three
are present here. Plaintiff's prior case sued the same
defendants, for the same alleged constitutional violations,
and was dismissed with prejudice. Compare (Docket
#1) with Mares I, (Docket #1, #6, and #8). Plaintiff
cannot simply re-file the same action after the first is
dismissed with prejudice, hoping for a different result the
both of these reasons, this action must be dismissed with
prejudice. The Court also notes that Plaintiff filed a
“motion for change of judge.” (Docket #4). There
is no right, however, to a change of judge in the federal
court system. Plaintiff's motion states that
“Defendant has stated to the Plaintiff [that] they have
had extensive ‘ex parte' communications with the
Judge's Clerk and the Honorable J.P. Stadtmueller in [the
previous case].” Id. To the extent this is a
request for recusal, it is baseless. See 28 U.S.C.
§ 455 (a judge must recuse himself from a proceeding
“in which his impartiality might reasonably be
questioned”). The Court has had no such communications
with Defendant or any of its representatives regarding any of
her filings. In fact, the only ex parte
communications the Court has had regarding the case have been
with Plaintiff herself. When her prior case was dismissed,
Plaintiff called the Court's chambers multiple times to
complain. Plaintiff's motion “for change of
judge” must be denied.
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby is DENIED;
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B) as frivolous;
IS FURTHER ORDERED that Plaintiff's motion
“for change of judge” (Docket #4) be and the same
is hereby DENIED; and
COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3) unless the plaintiff ...