United States District Court, E.D. Wisconsin
ORDER ON PLAINTIFF'S MOTION TO PROCEED IN FORMA
PAUPERIS AND SCREENING ORDER
JOSEPH UNITED STATES MAGISTRATE JUDGE
Sherman filed a pro se complaint against Wal-mart
alleging wrongful termination. (Docket # 1.) On January 3,
2018, I ordered Sherman to file an amended complaint
indicating whether he filed an administrative complaint.
Sherman has now filed an amended complaint and has attached
his Right to Sue Letter. (Docket # 6-1.) I will now screen
Sherman's amended complaint.
federal in forma pauperis statute is designed to
ensure that indigent litigants have meaningful access to the
federal courts while simultaneously preventing indigent
litigants from filing frivolous, malicious, or repetitive
lawsuits. Neitzke v. Williams, 490 U.S. 319, 324
(1989). To authorize a litigant to proceed in forma
pauperis, I must make two determinations.
I must determine whether the litigant is unable to pay the
costs of commencing the action. 28 U.S.C. § 1915(a).
This is done through a review of the litigant's assets as
stated on an affidavit submitted to the court. Id.
The party instituting a civil action in a district court is
required to pay a $400 fee to the court's clerk, but if
the court determines that the litigant has insufficient
assets, the court may authorize the commencement of the
action without payment of the fee.
I must determine that the action is neither frivolous nor
malicious, does not fail to state a claim, and does not seek
money damages against a defendant immune from such relief. 28
U.S.C. § 1915(e)(2)(B)(i)-(iii). An action is frivolous
if it is clear that the legal theory or the facts alleged are
baseless or irrational. Neitzke, 490 U.S. at 324;
Denton v. Hernandez, 504 U.S. 25, 31 (1992).
Dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim are to be reviewed based on the
standards set for dismissals under Federal Rule of Civil
Procedure Rule 12(b)(6). Dewalt v. Carter, 224 F.3d
607, 611-12 (7th Cir. 2000). 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 her favor. Id. at
612. Under Federal Rule of Civil Procedure 8(a)(2), an action
is considered to state a claim if, at a minimum, it includes
a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009).
states that he is married and has one minor son and one minor
daughter. (Docket # 2 at 1.) Sherman asserts that he is an
employee of Meijer and his monthly income is $3, 360.
(Id. at 2.) Sherman states that his monthly expenses
range from $2, 700-$3, 000. (Id. at 2-3.) However,
Sherman states that he owns a car and has $2, 000 in his
checking/savings account. Based on the information provided,
I am not satisfied that Sherman is indigent for the purpose
of the in forma pauperis statute. Therefore,
Sherman's motion to proceed without paying the filing fee
turn to the question of whether Sherman's action is
“frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). In his amended complaint,
Sherman alleges that he was terminated from Wal-Mart based on
false accusations stemming from racial animus. Title VII of
the Civil Rights Act of 1964 prohibits an employer from
terminating an employee because of racial discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A plaintiff may bring a charge of employment
discrimination in federal court once he makes an
administrative complaint and receives a notice of his right
to sue from the Equal Employment Opportunity Commission
(EEOC). Id. at 798. Accordingly, I do not find that
Sherman's complaint is frivolous or malicious. Further,
because Sherman is bringing his complaint against Wal-Mart
and an employee of Wal-Mart, I do not find that he is seeking
monetary relief against a defendant who is immune from such
I do not find that Sherman's complaint is frivolous, I
will allow Sherman to file the statutory filing fee by April
27, 2018. If Sherman does not pay the filing fee by this
date, his complaint will be dismissed Additionally, because
Sherman is bringing this claim against Tonia Logan, an
employee for Wal-Mart, I will allow Sherman to file a second
amended complaint against Wal-Mart alone. Title VII does not
provide for individual liability against an agent of the
employer. Williams v. Banning, 72 F.3d 552, 554-55
(7th Cir. 1995). To be clear, this does not mean that
Sherman's complaint cannot make factual allegations
against his supervisor Logan, but only Wal-Mart can be a
defendant and listed in the case caption as such.
THEREFORE, IT IS HEREBY ORDERED that Sherman's motion for
leave to proceed in forma pauperis is hereby DENIED;
FURTHER ORDERED that Sherman's second amended complaint
is due April 27, 2018;
FURTHER ORDERED that Sherman will have until April 27, 2018
to pay the statutory filing fee ...