United States District Court, E.D. Wisconsin
RICKY J. DARROW, Plaintiff,
RAYMOND CROSS, et al., Defendants.
DECISION AND ORDER ON PLAINTIFF'S MOTION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
JOSEPH UNITED STATES MAGISTRATE JUDGE
28, 2019, Ricky J. Darrow filed a complaint against his
former employer, the University of Wisconsin-Whitewater,
alleging that he was terminated from his employment without
due process of law. (Docket # 1.) Darrow also filed a motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis). (Docket # 2.) Because I find
that Darrow is indigent for purposes of the federal in
forma pauperis statute and that his complaint is not
frivolous or malicious and that it states a claim, his motion
will be granted.
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). 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. Id. at
612. Although a complaint need not contain
“‘detailed factual allegations, '” 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, 129 S.Ct. 1937, 1949 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
motion to proceed without prepayment of the filing fee,
Darrow states that he is unemployed and has no monthly
income. (Docket # 2 at 1-2.) He states that his total monthly
expenses are approximately $2, 000.00 and that he is
financially responsible for his disabled 38-year-old son.
(Id. at 1-3.) He owns two vehicles worth
approximately $350.00 total and a home worth approximately
$65, 000.00. (Id. at 3.) He states the amount of
equity in his home is approximately $10, 000.00 and he has
approximately $100.00 in either a checking or savings
account. (Id.) Darrow owns no other property of
value. (Id. at 4.) Based on the information provided
in Darrow's motion, I am satisfied that he is indigent
for purposes of the in forma pauperis statute.
turn to the question of whether Darrow's motion 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). Darrow alleges that he was
employed by the University of Wisconsin system for sixteen
years and had above average evaluations. (Docket # 1 at 1.)
Darrow alleges that he was unjustly accused of misconduct and
terminated from his employment without a hearing.
(Id.) Darrow alleges that he has a property interest
in his employment and was denied his property interest in
continued employment without due process of law.
due process case where the deprivation of property is
alleged, the threshold question is whether a protected
property interest actually exists. Cole v. Milwaukee Area
Tech. Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2011). To
have a protectable property interest in a benefit, such as
continued employment, a plaintiff must have more than an
“abstract need or desire for it” and more than a
“unilateral expectation of it.” Id.
Instead, a plaintiff must have a “legitimate claim of
entitlement to it.” Id. In the employment
context, a plaintiff generally is required to show that the
terms of his employment provide for termination only
“for cause” or otherwise evince “mutually
explicit understandings” of continued employment.
Id. Under Wisconsin law, “a dichotomy exists
between employment ‘at-will' and employment which
can be terminated only ‘for cause.'”
Id. (internal citation omitted). Employment which
can be terminated only “for cause” receives due
process protections. Id.
Darrow alleges that he had a property interest in his
continued employment with the University of
Wisconsin-Whitewater and that the University violated his due
process rights when it terminated him without a hearing.
Darrow's allegations properly state a claim. As such,
Darrow's motion for leave to proceed without prepayment
of the filing fee is granted.
THEREFORE, IT IS ORDERED that plaintiff's motion for
leave to proceed without prepayment of the filing fee (Docket
# 2) is hereby GRANTED.
FURTHER ORDERED that, pursuant to Fed.R.Civ.P. 4(c)(3), the
U.S. Marshals Service shall serve a copy of the complaint, a
waiver of service form and/or the summons, and this order
upon the defendants. Plaintiff is advised that Congress
requires the U.S. Marshals Service to charge for making or
attempting such service. 28 U.S.C. § 1921(a)(1)(A) &
(b). The current fee for waiver-of-service packages is $8 per
item. 28 C.F.R. § 0.114(a)(2). Although Congress
requires the Court to order service by the United States
Marshals Service because in forma pauperis