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Wesley v. Lodging

United States District Court, E.D. Wisconsin

July 30, 2018

WHITE LODGING, TIM GRIFFIN, and JOHN DOES, as affiliates, subsidiaries, employees, officers, directors, shareholders, attorneys, agents, representative successors, employer, Defendants.



         On December 21, 2017, the plaintiff, who is proceeding without a lawyer, filed a complaint against her employer. Dkt. No. 1. She also filed a petition and affidavit to proceed without prepaying the filing fee. Dkt. No. 2. The court will grant the plaintiff's petition to proceed without prepaying the filing fee, but will dismiss the case without prejudice because the plaintiff has not stated a claim that can proceed in federal court.

         I. Plaintiff's Motion to Proceed Without Prepayment of the Filing Fee (Dkt. No. 1).

         The court may allow someone to proceed without prepaying the filing fees if she meets two conditions: (1) she must show that she is unable to pay the filing fee; and (2) the court must find that the case is not frivolous or malicious, does not fail to state a claim on which a federal court can grant relief, and does not seek monetary relief against a defendant who is immune from that relief. 28 U.S.C. §§1915(a) and (e)(2).

         A. Plaintiff's Ability to Pay the Filing Fee

         Under 28 U.S.C. §1915(a), the court may allow a plaintiff without paying the filing fee if it finds that the plaintiff cannot pay those fees. The plaintiff's fee waiver request states that she is unemployed, single, and is not responsible for any dependents. Dkt. No. 2 at 2. She reports that she has no monthly income, but that her rent is $600 per month and that she has household expenses totaling $360 per month. Dkt. No. 2 at 2. She says that she spends $80 a month in transportation, for total monthly expenses of $1, 040. Id. She reports no other assets. The court finds that, based on these representations, the plaintiff does not have the money to pay the filing fee.

         B. Screening

         1. Legal Standard

         The 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).

         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). 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).

         To 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[.]” Federal Rule of Civil Procedure 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 (citation omitted).

         At the screening state, the court must accept the plaintiff's allegations as true, and may dismiss the complaint “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Given that federal courts are courts of limited jurisdiction, however, they can decide only cases where a plaintiff presents facts showing a violation of federal law or the federal constitution or where a plaintiff sues a citizen of a different state for an amount that exceeds $75, 000. 28 U.S.C. §§1331, 1332. If a plaintiff's case does not involve one of those sorts of claims, a federal court does not have jurisdiction to decide it.

         2. Facts Alleged in the Plaintiff's Complaint

         This is not the plaintiff's first federal court case. She has been filing cases in the Eastern District of Wisconsin since October of 2003-almost fifteen years. See Wesley v. Heinen, et al., Case No. 2003-cv-1033-aeg; Wesley v. State of Wis., Case No. 2003-cv-1480-aeg; Wesley v. Frish, 2004-cv-304-aeg; Wesley v. Kolsharbar, 2004-cv-824-la; Wesley v. Jones, 2004-cv-1243-pjg; Wesley v. Jones, et al., 2005-cv-595-cnc; Wesley v. Preservation Mgmt., Inc., et al., 2005-cv-1162-aeg; Wesley v. New Waico Apartments, 2008-cv-214-cnc; Wesley v. George, et al., 2009-cv-1063-cnc; Wesley v. Mason, 2016-cv-1152-dej; Wesley v. ...

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