United States District Court, E.D. Wisconsin
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE AND REPORT AND
RECOMMENDATION TO DISMISS CASE
JOSEPH UNITED STATES MAGISTRATE JUDGE
January 4, 2019, Brandy Bond filed a complaint against Maggie
Sutton, Waukesha County Child Protective Services, and the
Waukesha School District. Bond's complaint makes various
allegations related to an apparent custody dispute concerning
her minor son. (Docket # 1 at 3-4.) Bond also filed a motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis). (Docket # 2.) Bond has
previously filed three cases in this District that were
dismissed, including two last year. Bond v. Milwaukee
Police Dep't et al., No. 18-CV-1624 (E.D. Wis.
October 30, 2018); Bond v. Milwaukee Police Dep't et
al., No. 18-CV-402 (E.D. Wis. August 21, 2018); Bond
v. Wis. Hosp. Grp. et al., No. 17-CV-114 (E.D. Wis.
January 31, 2017). Bond's current complaint makes
allegations virtually identical to her most recent filing,
which Judge Adelman dismissed for failure to state a claim.
(No. 18-CV-1624 (E.D. Wis. October 30, 2018), Docket ## 5, 6)
Because this complaint does not state a claim for which
relief would be available in a federal court, I will deny
Bond's motion to proceed in forma pauperis and
recommend that this action be dismissed.
federal in forma pauperis statute, 28 U.S.C. §
1915, is designed to ensure indigent litigants meaningful
access to the federal courts while at the same time prevent
indigent litigants from filing frivolous, malicious, or
repetitive lawsuits. Nietzke v. Williams, 490 U.S.
319, 324 (1989). To authorize a litigant to proceed in
forma pauperis, the court must first determine whether
the litigant is able to pay the costs of commencing the
action. 28 U.S.C. § 1915(a). Second, the court must
determine whether the action is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
standards for reviewing dismissal for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii) are the same
as those for reviewing a dismissal under Federal Rule of
Civil Procedure 12(b)(6). See DeWalt v. Carter, 224
F.3d 607, 611-12 (7th Cir. 2000). To state a claim, a
complaint must provide a “short and plain statement of
the claim showing that [she] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). In evaluating whether a plaintiff's
complaint fails to state a claim, a court must take the
plaintiff's factual allegations as true and draw all
reasonable inferences in his favor. DeWalt, 224 F.3d
at 612. The complaint need not plead specific facts, and need
only provide “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)).
“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). The court is
obliged to construe a pro se plaintiff's
allegations liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
allegations stem from an apparent custody dispute regarding
Bond's minor child. Bond objects to the filing of a
Chapter 48 CHIPS petition against her, the removal of her
child from her custody without a court order, and the
placement of her child with a guardian she alleges is
abusive, alcoholic, and currently on bail on a DUI charge.
(Id. at 3.) She also alleges that Sutton defamed her
by lying to the Waukesha Sheriff's Department, claiming
Bond had made death threats against her. (Id.)
Although articulated somewhat differently, these claims are
nearly identical to and arise from the same underlying
circumstances as those in Bond v. City of Waukesha Police
Dept. et al., No. 18-CV-1624 (E.D. Wis. Oct. 30, 2018),
which was dismissed for failure to state a claim.
(Id. Docket ## 4, 6, 7.)
Bond's claims were dismissed in a prior proceeding, they
are barred by res judicata. Coleman v. Labor and
Indus. Review Comm'n of Wis., 860 F.3d 461, 468-70
(7th Cir. 2017) (“[A] dismissal at the screening stage
for failure to state a claim . . . is a decision on the
merits of the complaint. Not only will the plaintiff be
precluded from filing the same complaint again; principles of
res judicata will prevent her from filing another complaint
that arises from the same underlying circumstances.”).
To the minimal extent Bond states new claims-for example, the
Waukesha School District was not a named defendant in the
earlier action-they are not cognizable federal claims.
Regarding Bond's custody-related claims, federal courts
are to abstain from hearing child custody matters. See
Brand v. Zate, No. 18-C-326, 2018 WL 1342484 (E.D. Wis.,
March 15, 2018); see also Ankenbrandt v. Richards,
504 U.S. 689, 703 (1992); In re Burrus, 136 U.S.
586, 593-94 (1890) (“The whole subject of the domestic
relations of husband and wife, parent and child, belongs to
the laws of the States and not to the laws of the United
States.”). Regarding Bond's constitutional claims,
she refers to the Equal Protection Clause of the Constitution
(Docket # 1 at 3), but she does not allege any facts from
which I could infer that she was discriminated against on any
impermissible basis such as race or sex. The remainder of
Bond's claims, such as negligence and defamation, are
state law claims.
construed extremely liberally, Bond's complaint does not
state any claim upon which relief may be granted and is
barred by res judicata. Therefore, I will deny her
motion to proceed in forma pauperis and recommend
that her complaint be dismissed for failure to state a claim.
THEREFORE, IT IS ORDERED that plaintiff's motion to
proceed in forma pauperis (Docket # 2) be DENIED.
RECOMMENDED that this case be dismissed for failure to state
attention is directed to General L.R. 72(c), 28 U.S.C. §
636(b)(1)(B) and Federal Rules of Criminal Procedure 59(b),
or Federal Rules of Civil Procedure 72(b) if applicable,
whereby written objections to any recommendation or order
herein, or part thereof, may be filed within fourteen days of
the date of service of this recommendation or order.
Objections are to be filed in accordance with the Eastern
District of Wisconsin's electronic case filing
procedures. Courtesy paper copies of any objections shall be
sent directly to the chambers of the district judge assigned
to the case. Failure to file a timely objection with the
district court shall result in a waiver of a party's
right to appeal. If no response or reply will be filed,
please notify the Court in writing.