United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
DISMISSING CASE FOR FAILURE TO STATE A CLAIM
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
the second of four cases that the plaintiff (who is
representing himself) filed in the Eastern District of
Wisconsin a four-week span. Case Nos. 18-cv-536, 18-cv-548,
18-cv-684 and 18-cv-685. He filed this complaint three days
after he filed his first complaint; this time he has sued
individuals from the U.S. Marshals Service. Dkt. No. 1. In
his first complaint, the plaintiff sued the FBI office and a
FBI agent because they allegedly refused to help him or
investigate his allegations. In this complaint, he has sued
the U.S. Marshals Service in Milwaukee, Tom Conlon,
“Deon, ” “Laurel” and
“Patrick.” Dkt. No. 1 at 2. The plaintiff also
asks for leave to proceed without prepaying the filing fee.
Dkt. No. 2. Although the plaintiff has established that he
cannot afford the filing fee, the court will dismiss the case
for failure to state a claim.
Plaintiff's Motion to Proceed Without Prepayment of the
court may allow a litigant to proceed without prepayment of
the filing fees if two conditions are met: (1) the litigant
is unable to pay the filing fee; and (2) the case is not
frivolous nor malicious, does not fail to state a claim on
which relief may be granted, and does not seek monetary
relief against a defendant who is immune from such relief. 28
U.S.C. §§1915(a) and (e)(2).
Plaintiff's Ability to Pay the Filing Fee
plaintiff states that he is unemployed, single, and has a
fifteen-year-old son for whom he provides no financial
support. He reports no monthly income and no expenses, and
says that he owns no property of value. It is unlikely that
the plaintiff has no expenses-even if he lives with someone
who pays the bills, he likely has some obligations. Given the
other problems with the case, however, the court will accept
the plaintiff's claim that he can't pay the filing
court must dismiss a complaint if a plaintiff raises 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. §1915A(b).
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). 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. “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) (citations omitted).
state a claim under the federal notice pleading system, a
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead
every fact supporting his claims; he only has to “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)). That said, a complaint
that offers only “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). Rather, 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
Facts Alleged in the Plaintiff's Complaint
noted above, Fed.R.Civ.P. 8(a)(2) states that a complaint
“must contain . . . a short and plain statement of the
claim showing that the pleader is entitled to relief.”
There is a reason that the rule specifies a “short and
plain” statement. “Rule 8(a) requires parties to
make their pleadings straightforward, so that judges and
adverse parties need not try to fish a gold coin from a
bucket of mud.” U.S. ex rel. Garst v.
Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir.
2003). The plaintiff cannot leave the court “to guess
what claims [he] intends to assert against which
defendants.” Dunigan v. St. Clair Cty. Jail
Med. Staff, No. 15-CV-487, 2015 WL 2455505, *2 (S.D.
Ill. May 22, 2015).
form the plaintiff used to file his complaint asked him to
provide a statement of the claim identifying who violated his
rights, what each defendant did, when they did it, where it
happened and why ...