United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S REQUEST TO PROCEED IN
DISTRICT COURT WITHOUT PREPAYING THE FILING FEE AND
RECOMMENDING THAT THE ACTION BE DISMISSED
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
pending before the court is plaintiff Amontre O'Brian
Ross's Request to Proceed in District Court without
Prepaying the Filing Fee. Having reviewed Ross's request,
the court concludes that he lacks the financial resources to
prepay the fees and costs associated with this action.
Therefore, his Request to Proceed in District Court without
Prepaying the Filing Fee will be granted.
the court is granting Ross's Request to Proceed in
District Court without Prepaying the Filing Fee, it must
determine whether the complaint is legally sufficient to
proceed. 28 U.S.C. § 1915. Congress sought to ensure
that no citizen would be denied the opportunity to commence a
civil action in any court of the United States solely due to
poverty. Denton v. Hernandez, 504 U.S. 25, 31 (1992)
(quoting Adkins v. E. I. DuPont de Nemours &
Co., 335 U.S. 331, 342 (1948)). However, Congress also
recognized that “a litigant whose filing fees and court
costs are assumed by the public, unlike a paying litigant,
lacks an economic incentive to refrain from filing frivolous,
malicious, or repetitive lawsuits.” Id.
(quoting Neitzke v. Williams, 490 U.S. 319, 324
(1989)). To balance these competing concerns, before the
court can allow a plaintiff to proceed in forma pauperis it
must determine that the case neither (1) is frivolous or
malicious, (2) fails to state a claim upon which relief may
be granted, nor (3) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Thus, although “a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers, ” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)), a pro se complaint
must meet these minimal standards before the court shall
grant a plaintiff leave to proceed in forma pauperis.
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton, 504 U.S. at 31;
Neitzke, 490 U.S. at 325. Although factual
allegations must be weighed in favor of the plaintiff, that
does not mean that the court is required to accept without
question the truth of the plaintiff's allegations.
Denton, 504 U.S. at 32. Thus, a court may dismiss a
claim as frivolous if it is “clearly baseless, ”
“fanciful, ” “fantastic, ”
“delusional, ” “irrational, ”
“wholly incredible, ” or “based on an
indisputably meritless legal theory.” Id. at
32-33. A court may not dismiss a claim as frivolous simply
because “the plaintiff's allegations are
might not be frivolous or malicious but nonetheless fail to
state a claim upon which relief may be granted and,
therefore, be subject to dismissal. In determining whether a
complaint is sufficient to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii), the court applies the same
well-established standards applicable to a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000).
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Although the allegations in a complaint need not be detailed,
a complaint “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks, citation, and brackets omitted). The complaint must be
sufficiently detailed “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)) (quotation marks and ellipses omitted).
complaint contains well-pleaded non-frivolous factual
allegations, the court should assume the veracity of those
allegations and “then determine whether they plausibly
give rise to an entitlement to relief.” Iqbal,
556 U.S. at 679. “Determining whether a complaint
states a plausible claim for relief will … be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
the standards set forth in 28 U.S.C. § 1915(e)(2) in
mind, the court turns to the allegations raised in Ross's
complaint. Ross seeks to sue his fifth-grade teacher who, at
some point during the 1999-2000 school year, asked to retain
poems that Ross had written. The teacher apparently never
returned the poems. He contends that this “selfish,
” “highly insensitive, ” and
“predatory” act may have “completely
change[d] the trajectory of the many loved ones around
[Ross]” because if the poems had been returned he
“may have made an affirmative pivot towards such full
time artistry.” (ECF No. 1 at 3.) Ross demands
full ownership of any and all copyrights, publishings
associated [with] its distributions and any and everything
that manifested because of. Every dollar made from the works
should be rightfully awarded to me, minus any interest. $100,
000 pain and suffering is also asked for in consideration of
everything that was when factoring in socio economic
disadvantages being a young Black man in the inner city of
(ECF No. 1 at 5.)
court cannot discern any plausible legal claim in Ross's
complaint. There is no suggestion that Ross's fifth-grade
teacher ever published Ross's poems, much less benefitted
financially from any publication. Moreover, even if Ross
could adequately plead the element of a copyright
infringement claim, such a claim would seem to be barred by
the three-year statute of limitations for such claims,
see 17 U.S.C. § 507(b). At best, Ross alleges
that his fifth-grade teacher retained possession of
Ross's work, which does not suggest any legal claim that
is cognizable in federal court.
IS THEREFORE ORDERED that the plaintiff's
Request to Proceed in District Court without Prepaying the
Filing Fee (ECF No. 2) is granted.
IS FURTHER RECOMMENDED that Ross's complaint and
this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
attention is directed to 28 U.S.C. § 636(b)(1)(B) and
(C) and Fed.R.Civ.P. 72(b)(2) whereby written objections to
any recommendation herein or part thereof may be filed within
fourteen days of service of this recommendation. Failure to
file a timely ...