United States District Court, E.D. Wisconsin
CHARMAINE T. FOWLKES, Plaintiff,
JOHNNY CABRAL, KRISTAN YOUNG SORRELL, and ASHLEY TANNER, Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE.
Charmaine T. Fowlkes (“Fowlkes”), 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 prepaying the $400.00 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 Fowlkes 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). Fowlkes' motion states
that she is unemployed and her only income is $300.00 per
month for child support. (Docket #2). She has one dependent,
a fifteen-year-old daughter. Id. Her monthly
expenses total about $1, 800.00. Id. Her only asset
is a car worth approximately $3, 500.00, and she has
considerable student debt. Id. In light of these
representations, the Court finds that Fowlkes 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
appears from Fowlkes' complaint that she was previously
employed by Amazon.com from her residence in Wisconsin.
(Docket #1 at 3). She alleges that around September 2017,
Johnny Cabral (“Cabral”), who apparently lives in
Arizona and also worked for Amazon.com, possibly as
Fowlkes' supervisor, began harassing her by installing
malware on her “personal devices, laptop, cellphones,
[and] iPads.” Id. He “scanned”
Fowlkes' personal devices and started routing calls to
Fowlkes' telephone using a program that would change the
area code of the incoming call. Id. He also accessed
Fowlkes' home network, the network of her other employer
(who Fowlkes does not name), and the network of the Wauwatosa
Library, where she would go on a regular basis to work.
Id. at 3-4. In those networks, Cabral added rights
as an administrator that allowed him to view, add, modify,
delete, move, and block any work that Fowlkes performed.
Id. at 4. He apparently used this access to disrupt
Fowlkes' work. Id. Cabral also used Fowlkes'
passwords without permission to access Fowlkes' personal
January 2018, Fowlkes was assigned a new supervisor, Ashley
Tanner (“Tanner”), who lives in Washington state.
Id. at 2, 4. Tanner facilitated Cabral's
continued access to Fowlkes' computer so that he could
continue harassing Fowlkes. Id. at 4. One reason
Fowlkes knows this to be true is that she had one-on-one
telephonic meetings with Tanner but the calls would include
three attendees, with the third person presumably being
Cabral. Id. Tanner also informed Fowlkes that Cabral
decided Fowlkes would not receive a merit pay increase.
January 2018, Fowlkes reached out to Kristan Young Sorrell
(“Sorrell”), whose title is unclear but who lives
in West Virginia, and informed her of Cabral's harassment
and the pay increase issue, but Sorrell said there was
nothing she could do. Id. at 2, 4-5. Fowlkes also
asked Sorrell about the company's policy regarding access
of personal devices during non-work hours, and Sorrell
assured Fowlkes that the company's policy did not allow
for that type of access. Id. at 5. Sorrell assured
Fowlkes that no one had accessed or scanned her devices.
in February 2018, Fowlkes went the library to work on her
computer, and noticed her business website “being
altered, letters deleted, colors changing, boxes moved out of
place.” Id. She immediately reported the
incident to the Wauwatosa Police Department, and then went
back to the library to finish her work. Id. When she
opened her laptop, she saw that Cabral was “scanning
[her] personal laptop.” Id. Fowlkes notified
Sorrell, who called Fowlkes and said she was opening an
investigation. Id. Sorrell told Fowlkes to stop
working while they completed their investigation.
days later, Fowlkes tried to log on to her work computer and
discovered she had no access authority. Id. She
called Amazon.com and was informed that she had been
suspended, but she does not know the reason for her
suspension. Id. Fowlkes seeks $100, 000 in damages
and the termination of defendants' employment with
Amazon.com. Id. at 6. She also asks that her status
with Amazon.com be restored to employee in good standing.
does not indicate the statute or law under which she believes
her claims arise. Given that the thrust of her complaint
centers on alleged computer harm, the Court finds that the
most suitable avenue for relief would be under the Computer
Fraud and Abuse Act (“CFAA”), 18 U.S.C. §
1030. Fowlkes' allegations approach sufficiency to state
a claim under the CFAA, but her pleading requires amendment
before the Court can determine if her case can proceed on
CFAA prohibits any person from, among other things: (a)
“access[ing] a protected computer without
authorization” so as to perpetuate a fraud and
“obtain anything of value”; (b) knowingly
“caus[ing] the transmission of a program, information,
code or command” so as to intentionally cause damage to
a protected computer; or (c) accessing a protected computer
without authorization, in a manner that causes
“damage” to the computer. Id. §
1030(a)(4), (a)(5). A “protected computer” is
broadly defined as any computer “used in interstate or
foreign commerce or communication.” Id. §
a criminal statute, the CFAA now provides a civil remedy as
well. Id. § 1030(g). Specifically, the Act
states that “[a]ny person who suffers damage or loss by
reason of a violation of this section may maintain a civil
action against the violator to obtain compensatory damages
and injunctive relief or other equitable relief.”
Id. The term “damage” is defined as any
act that causes “impairment to the integrity or
availability of data, a program, a system or
information.” Id. § 1030(e)(8). The term
“loss” includes “any reasonable cost to any
victim, including the cost of responding to an offense,
conducting a damage assessment, and restoring the data,
program, system, or information to its condition prior to the
offense, and any revenue lost, cost incurred, or other
consequential damages incurred because of interruption of
service.” Id. § 1030(e)(11).
a civil action for a violation of the CFAA may be brought
only if the alleged misconduct involves ...