United States District Court, E.D. Wisconsin
CHARMAINE T. FOWLKES, Plaintiff,
JOHNNY CABRAL, KRISTAN YOUNG SORRELL, and ASHLEY TANNER, Defendants.
Stadtmueller U.S. District Judge
Charmaine T. Fowlkes (“Fowlkes”), proceeding
pro se, filed a complaint in this matter and a
motion for leave to proceed in forma pauperis,
meaning without prepayment of the filing fee. (Docket #1,
#2). The Court granted Fowlkes' motion to proceed without
prepayment of the filing fee but struck her complaint because
it failed to state a claim for relief. (Docket #5). The Court
permitted Fowlkes to file an amended complaint, explaining
that, like her first complaint, the amended complaint would
be screened to determine if it states a claim for relief.
Id. at 8; 28 U.S.C. § 1915(e)(2)(B). Fowlkes
has filed an amended complaint, (Docket #6), and the Court
will screen it. The same standards for screening set out in
the Court's previous order apply in equal force here.
See (Docket #5 at 2-3).
thrust of Fowlkes' amended complaint is the same as her
original complaint. She alleges that she was previously
employed by Amazon.com, and during her employment, her
supervisor, Johnny Cabral (“Cabral”),
continuously harassed her and prevented her advancement at
the company. See generally (Docket #6). Fowlkes
believes that Cabral somehow accessed her computer and
personal devices remotely and then installed malware or
somehow manipulated her programs and data in order to harass
her. Id. at 3-4. She alleges that she received
incoming phone calls from numbers that did not appear to
match the caller or had no one on the line when she picked
up, and she seems to attribute this to Cabral. Id.
at 4. She alleges that the data usage for her household went
up significantly, and she seems to imply this is Cabral's
fault. Id. She alleges that she once received a
notification from Google that “Johnny” was
“scanning [her] personal computer.” Id.
She was assigned a new supervisor, Ashley Tanner
(“Tanner”), who Fowlkes believes either failed to
stop or facilitated Cabral's harassment. Fowlkes also
reached out to Kristan Young Sorrell (“Sorrell”),
whose title is still unclear, and she apparently did not
address the harassment either. Id.
the Court screened Fowlkes' original complaint, it noted
that because the thrust of her complaint centered on alleged
computer misconduct, the most suitable avenue for relief
would be under the Computer Fraud and Abuse Act
(“CFAA”), 18 U.S.C. § 1030. The CFAA
prohibits any person from, among other things: (a)
“access[ing] a protected computer without
authorization” so as to perpetuate a fraud and
“obtain anything of value”; (b) knowingly
“caus[ing] the transmission of a program, information,
code or command” so as to intentionally cause damage to
a protected computer; or (c) accessing a protected computer
without authorization, in a manner that causes
“damage” to the computer. Id. §
1030(a)(4), (a)(5). A “protected computer” is
broadly defined as any computer “used in interstate or
foreign commerce or communication.” Id. §
Court explained that although Fowlkes had alleged that she
used her computer in interstate commerce, thereby satisfying
the “protected computer” element of the claim,
her allegations as to the other elements of a CFAA claim fell
short. For example, she did not state a claim under Section
1030(a)(4) because she did not allege that Cabral intended to
defraud her or that he “obtain[ed] anything of
value” through his unauthorized access to her computer.
Id. § 1030(a)(4). She did not state a claim
under Section 1030(5) because she did not allege damage to
her computer. More fundamentally, she also did not
sufficiently allege harm. The CFAA requires that a plaintiff
allege one of several enumerated “factors of harm,
” of which the closest fit for Fowlkes' claim is
set forth in Section 1030(c)(4)(A)(i)(I). Under that
subsection, Fowlkes must allege that she suffered at least
$5, 000 in economic damages within one year. Id.; 18
U.S.C. § 1030(g). Fowlkes did not allege that any of the
defendants' acts caused her any economic harm whatsoever.
Though she sought $100, 000 in damages, she did not explain
those damages in any detail or allege that those damages were
in any way connected to the defendants' misconduct.
amended complaint, Fowlkes explains that she seeks damages of
“$30, 000 per person for their part in the harassment
and $10, 000 for the loss of income due to the
harassment.” (Docket #6 at 2). She does not include
allegations to support these amounts; she merely indicates
that she intended to apply for a “higher level
position” but the “discrimination and harassment
has prevented that action from taking course.”
put, Fowlkes' amended complaint does not sufficiently
allege harm that is remediable under the CFAA. That statute
is not meant to compensate for harassment; it is intended to
prohibit fraudulent conduct on protected computers and to
compensate for computer damage or theft. See Fidlar
Techs. v. LPS Real Estate Data Sols., Inc., 810 F.3d
1075, 1084 (7th Cir. 2016) (discussing the purpose of
Sections 1030(a)(4) and 1030(a)(5)(A)).
to Fowlkes' reputation, emotional distress, and lost
earnings are not compensable under the CFAA. See Combier
v. Portelos, No. 17-CV-2239 (MKB), 2018 WL 3302182, at
*10 (E.D.N.Y. July 5, 2018), report and recommendation
adopted, No. 17CV2239MKBRLM, 2018 WL 4678577 (E.D.N.Y.
Sept. 29, 2018).
Fowlkes also does not allege sufficient factual matter to
permit a “reasonable inference, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), that the defendants
were involved in causing the mysterious computer problems she
alleges. See Omari v. Ras Al Khaimah Free Trade Zone
Auth., No. 16 CIV. 3895 (NRB), 2017 WL 3896399, at *11
(S.D.N.Y. Aug. 18, 2017), aff'd sub nom. El Omari v.
Kreab (USA) Inc., 735 Fed.Appx. 30 (2d Cir. 2018)
(Plaintiff's speculative allegations that defendants had
engaged in unauthorized access of his website were
insufficient to state a claim under the CFAA.). She must
provide some factual content plausibly connecting the
defendants to the misconduct alleged, and her unsubstantiated
theory that her supervisors had an animus against her and
somehow caused myriad strange technical problems for her is
not sufficient. For all of these reasons, the Court finds
Fowlkes has failed to state a claim under the CFAA.
Court moves on, then, to endeavor to identify any other claim
Fowlkes has plausibly alleged in her amended complaint. The
material differences between Fowlkes' original and
amended complaints are that she seeks to add several claims,
mostly based on state law (she references the Wisconsin
Statutes sections for fair employment, discrimination,
internet privacy, and parties to a crime), and she mentions
for the first time the she is African American, with
reference to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title
Fowlkes' allegations related to her race do not state a
claim for relief under Title VII. Federal law does not
protect employees from being suspended or terminated without
cause. It does prohibit employers from terminating people
based on certain characteristics, including race.
See 42 U.S.C. § 2000e-2(a)(1). Fowlkes alleges
that she was the only African American female who reported to
Cabral, (Docket #6 at 2), but she says nothing to connect her
race to her having been reprimanded or terminated. Indeed,
she does not allege that Cabral ever took her race into
account. While working for Amazon.com, Fowlkes apparently
received calls during which she was met with offensive
language and terms known to discriminate against African
Americans, and she complained about receiving those calls.
Id. at 4. But she does not provide factual material
connecting those calls to her employer, or connecting her
complaints about them to any adverse employment action
against her. Her allegations are not sufficient to state a
claim of racial discrimination under Title VII.
as to Fowlkes' references to Wisconsin state employment
and privacy statutes, even if her allegations were sufficient
to state claims under those laws, the Court would only
exercise jurisdiction over them if it had proper subject
matter jurisdiction over the case either based on an alleged
federal question or based on diversity of citizenship.
See 28 U.S.C. §§ 1331, 1332, 1367. As
explained above, Fowlkes has not stated a federal claim under
the CFAA or Title VII, and the Court finds no basis for any
other federal claim. The Court also does not detect a basis
for diversity jurisdiction. In her original complaint,
Fowlkes stated or implied that Cabral lived in Arizona,
Tanner in Washington, and Sorrell in West Virginia. (Docket
#1). Fowlkes does not repeat those allegations in her amended
complaint, but even if these defendants are indeed all
citizens of different states than Fowlkes, who lives in
Wisconsin, the amount in controversy does not exceed $75,
000, as is required for the exercise of diversity
jurisdiction. 28 U.S.C. § 1332. Fowlkes seeks damages of
“$30, 000 per person for their part in the harassment
and $10, 000 for the loss of income due to the harassment,
” (Docket #5 at 2), but she does not include
allegations to support these amounts. The Court finds that
the amount in controversy, if any, does not meet the
threshold for diversity jurisdiction.
if the defendants are all citizens of different states as
Fowlkes originally pled, the Court would find that it lacks
personal jurisdiction over them. The Court flagged the
personal jurisdiction issue in its previous order, (Docket #5
at 7-8), and Fowlkes has not provided allegations to assure
the Court that the defendants have sufficient minimum
contacts with Wisconsin for this Court to exercise personal
jurisdiction over them.
Court will dismiss the federal claims alleged in Fowlkes'
amended complaint for failure to state a claim upon relief
can be granted and will decline to exercise jurisdiction over
the state law claims alleged in her amended complaint. 28