United States District Court, E.D. Wisconsin
MARY JANE BESTER, ANDRE LASHAUN KELLY, JR., and MAISHA KIMYA BESTER, Plaintiffs,
TRACFONE, CONSUMER CELLULAR, TARGET, AMAZON PRIME, VORTEX GOVERNMENT FREEPHONE, MILWAUKEE COUNTY TRANSIT SYSTEM, JOMELA PROPERTIES, HEBRON HOUSE, and HOPE CENTER, Defendants.
Stadtmueller U.S. District Judge.
25, 2018, Plaintiff filed a pro se complaint
alleging that her civil rights were violated. (Docket
This matter comes before the court on Plaintiff's motion
to proceed in forma pauperis. (Docket #2).
Notwithstanding the payment of any filing fee, the Court must
dismiss a complaint if it raises claims that are
“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);
Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
(7th Cir. 1997). The court may, therefore, 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)
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
for a plaintiff to plead specific facts, and her 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 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). 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
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. To state a claim for relief
under 42 U.S.C. § 1983, a plaintiff must allege that: 1)
she was deprived of a right secured by the Constitution or
laws of the United States; and 2) the deprivation was visited
upon her by a person or persons acting under color of state
law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N.
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The
Court is obliged to give a pro se litigant's
allegations, “however inartfully pleaded, ” a
liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
allegations are, to put it generously, difficult to follow.
She makes wide-ranging allegations against this seemingly
random collection of defendants for incidents and issues
having nothing to do with each other. First, bus drivers in
Milwaukee and Seattle have been rude to her. (Docket #1 at
4-5). Then, without any reason for the transition, Plaintiff
complains about her apartment. Id. at 5. She seems
to be upset with the cost of the unit, its state of
uncleanliness and disrepair, and various other financial
issues with the leasing company. Id. at 5-9.
Plaintiff wants the Court to have the Hope Center give her a
bed. Id. at 10. Plaintiff also alleges that she has
had problems with cell phone service and blames numerous
defendants for this. Id. at 10-12. Plaintiff further
states that her grandson needs a new parole officer.
Id. at 12. She references other “cases”
in the state of Washington which she wants to have
transferred to this Court in Milwaukee. Id. at
12-13. Finally, Plaintiff mentions that she should have
received some unemployment compensation from a company.
Id. at 13.
lawsuit cannot proceed for numerous reasons, but two are
illustrative. First, none of her allegations invoke this
Court's jurisdiction. Federal courts are courts of
limited jurisdiction, and may only hear cases in two primary
categories: 1) those raising issues of federal law, known as
“federal question” jurisdiction, and 2) those
between parties who are citizens of different states and
which involve an amount in controversy exceeding $75, 000.00,
known as “diversity” jurisdiction. See
28 U.S.C. §§ 1331 and 1332(a). Plaintiff's
complaint does not assert either. She does not state any
cognizable federal claims against any of the defendants, and
at least some of the defendants are from
Plaintiff's allegations are nonsensical, fantastical, and
barely coherent. Throughout her complaint, she variously
states that someone has stolen her handwriting, (Docket #1 at
5), that unknown people are “doing stings” on
her, id. at 6, that she is her own attorney,
id. at 8, and that she is repeatedly “striking
lotteries” but the money is stolen from her,
id. at 12. In her prayer for relief, Plaintiff says
she wants to “start beheading civilization” and
seeks “$400, 000, 000 gazillion daily for
life[.]” Id. at 14. As noted above, Plaintiff
has also filed a motion for leave to proceed in
forma pauperis. (Docket #2). In that motion,
Plaintiff claims to have won numerous lotteries,
“struck oil” in Washington and Texas, and own
buses and a radio station in Seattle. Id. at 4.
may dismiss claims based on allegations that are
“obviously and knowingly false.” Gladney v.
Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir.
2002); see also Edwards v. Snyder, 478 F.3d 827,
829-30 (7th Cir. 2007). Moreover, a suit may be dismissed
“because the facts alleged are so . . . unbelievable,
even though there has been no evidentiary hearing to
determine their truth or falsity.” Gladney,
302 F.3d at 774; see also Lee v. Clinton, 209 F.3d
1025 (7th Cir. 2000); Bilal v. Driver, 251 F.3d 1346
(11th Cir. 2001); Lawler v. Marshall, 898 F.2d 1196,
1199 (6th Cir. 1990). “[N]o evidentiary hearing is
required in a prisoner's case (or anyone else's, for
that matter) when the factual allegations are
incredible.” Gladney, 302 F.3d at 774
(internal citations omitted). Plaintiff's allegations are
clearly of the incredible variety and are beyond fantastic
and delusional. See Denton v. Hernandez, 504 U.S.
25, 32-33 (1992). Consequently, this case must be dismissed
as frivolous. Gladney, 302 F.3d at 775 (citing
Okoro v. Bohman, 164 F.3d 1059, 1062-64 (7th Cir.
1999) (“a frivolous suit does not engage the
jurisdiction of the district court”).
IT IS ORDERED that Plaintiffs Andre Lashaun
Kelly, Jr. and Maisha Kimya Bester be and the same are hereby
DISMISSED from this action;
IS FURTHER ORDERED that Plaintiff Mary Jane
Bester's motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby is
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B) as frivolous; and
COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3) unless Plaintiff ...