United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
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).
question of indigence, although Plaintiff need not show that
she 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's motion
states that she brings in approximately $1, 250 per month and
spends almost $1, 500 to support herself and her five
children. (Docket #2). Plaintiff also receives over $300 in
food stamps. Id. In light of these representations,
the Court finds that Plaintiff is indigent for purpose of
prepaying the filing fee. She will be granted leave to
proceed in forma pauperis.
the payment of any filing fee, however, 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.
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
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
alleges that Defendants, all “Racine County Police
Officers” (they must be either City of Racine police
officers or Racine County Sheriff's deputies), searched
her home on October 29, 2014. (Docket #1 at 2-4). They kicked
in her back door and “ransacked” her house,
taking various items. Id. at 4. Plaintiff says that
the items taken are listed in an attached document, but no
such document accompanies the complaint. Plaintiff says that
the officers conducted their search “on a[n] assumption
of what my neighbors told them, ” and again references
a non-existent attached document. Id. Plaintiff
contends that the officers' actions violated her rights
under the Fourth Amendment, id. at 3, and she
demands a return of her property as well as money damages,
id. at 5.
allegations, viewed generously, state a claim under the
Fourth Amendment. The Fourth Amendment proscribes
unreasonable searches and seizures by government officials.
U.S. Const. amend. IV. Maintaining the sanctity of one's
person and home from police intrusion is the primary goal of
the Fourth Amendment. Hawkins v. Mitchell, 756 F.3d
983, 991 (7th Cir. 2014). This protection may give way,
however, if the police have a search warrant or some other
recognized justification for searching a person or property.
Johnson v. Manitowoc Cnty., 635 F.3d 331, 335 (7th
Cir. 2011). Even with a warrant, the manner in which a search
is executed must also be reasonable. Id. Though her
complaint is sparse on detail, the Court can infer that
police did not have an adequate justification to search
Plaintiff's home, and even if they did, their manner of
entry and search was unreasonable. Whether the facts bear
this out, or whether Defendants have any procedural or
substantive defenses for their actions, must be determined at
a later date.
Rule of Civil Procedure 4(c)(3) provides that the Court must
order service by the U.S. Marshal if a plaintiff is
authorized, as she is in this case, to proceed in forma
pauperis under 28 U.S.C. § 1915. See Williams
v. Werlinger, 795 F.3d 759, 760 (7th Cir. 2015).
However, Congress requires the U.S. Marshals Service to
charge for making or attempting such service. 28 U.S.C.
§ 1921(a). The current fee for waiver-of-service
packages is $8.00 per item mailed. The full fee schedule is
provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
Although Congress requires the Court to order service by the
U.S. Marshals Service precisely because in forma
pauperis plaintiffs are indigent, it has not made any
provision for these fees to be waived either by the Court or
by the U.S. Marshals Service. Thus, the Court will allow
Plaintiff to elect, within fourteen days, whether she desires
service by the U.S. Marshal or whether she will obtain
service on Defendants of her own accord. If Plaintiff wants
to effect service herself, she should simultaneously file a
request for the Clerk of the Court to issue a service packet
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED; and
IS FURTHER ORDERED that Plaintiff shall file, within
fourteen days, a notice indicating which ...