United States District Court, E.D. Wisconsin
KATRINA C. WESLEY, Plaintiff,
WHITE LODGING, TIM GRIFFIN, and JOHN DOES, as affiliates, subsidiaries, employees, officers, directors, shareholders, attorneys, agents, representative successors, employer, Defendants.
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.
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.
Plaintiff's Motion to Proceed Without Prepayment of the
Filing Fee (Dkt. No. 1).
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)
Plaintiff's Ability to Pay the Filing Fee
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.
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[.]”
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).
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
Facts Alleged in the Plaintiff's Complaint
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.