United States District Court, E.D. Wisconsin
ORDER ADOPTING JUDGE JOSEPH'S RECOMMENDATION
(DKT. NO. 5) AND DISMISSING THE CASE FOR FAILURE TO STATE A
Pamela Pepper United States District Judge
24, 2019, Ana Maria Alicia Martinez, representing herself,
filed a complaint against the Clerk of Court for the U.S.
District Court for the Eastern District of Wisconsin. Dkt.
No. 1. On June 3, 2019 Magistrate Judge Nancy Joseph denied
the plaintiff's motion to proceed without prepaying
filing fee and recommended that this court dismiss the
complaint for failure to state a claim upon which relief may
be granted and the inability of an amendment to cure those
defects. Dkt. No. 4-5. The plaintiff did not pay the filling
fee or file an objection to Judge Joseph's
Federal Rule of Civil Procedure 72(b), if a party does not
object to a magistrate judge's report and recommendation,
the district court reviews the recommendation for clear
error. Fed.R.Civ.P. 72(b); Johnson v. Zema Sys.
Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citations
omitted). This court must decide only whether Judge
Joseph's report and recommendation are clearly erroneous.
The court concludes that they are not.
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 dismissal under Federal Rules 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 [he] 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).
Joseph denied the plaintiff's request to proceed without
prepaying the filing fee. She issued that order on June 3,
2019; almost three months have passed and the defendant has
not paid the $400 filing fee. That, alone, is a reason for
the court to dismiss the complaint.
the plaintiff had paid the filing fee, however, her complaint
does not state a claim for which a federal court can grant
relief. The only defendant the plaintiff listed in the
caption of her complaint is the clerk of court for the
Eastern District of Wisconsin. Dkt. No. 1 at 1. In the body
of the complaint, however, where she describes the
“who, what, when, where and why” of her claim,
she does not mention the clerk of court. She does not allege
that the clerk of court did anything to her, or failed to do
anything for her that the clerk was required to do. Even if
the plaintiff had alleged that the clerk did something, or
didn't do something, in the performance of his duties,
the clerk would be entitled to absolute immunity from suit.
Wickstrom v. Ebert, 585 F.Supp. 924, 934-35. (E.D.
plaintiff marked the box on page 4 of the complaint that
indicated that she was suing for a violation of federal law
under 28 U.S.C. §1331. Dkt. No. 1 at 4. The only
reference in the complaint to any federal law is the presence
of the initials “ADA” in the margin on page 4,
after the words, “Im just trying to get to the right
doctors on time HA!.” Id. The plaintiff
describes getting sick from a flu shot she received from
“SC Johnson and all their incest, creepy medical
man.” Id. at 2. She says that she has seen
many doctors, received two degrees, pays federal loans and
volunteers a great deal to help people. Id. at 3.
She mentions discrimination, racism, binary code, World War
II, artificial intelligence, anti-terrorism, harassment and
witness protection. She attached to the compliant the
court's “Guide to Filing Non-Prisoner Complaints
Without a Lawyer” which contains handwritten notes,
such as “State of California, ” “State of
Washington, ” “Jacksonville, Florida, ”
“undetaining humans, ” “United Nations
Brussels, Belgium” and “P.S. They killed my
Lithuanian grandfather.” Dkt. No. 1-1 at 1-3. Neither
the complaint nor the attachment explain why the plaintiff
filed this complaint. The plaintiff does not explain what she
believes the clerk of court did to her, when he did it, where
he did it or why he did it. She does not allege that
anyone did anything to her other than to say that
“SC Johnson” gave her a flu shot. There is no
federal law that prohibits a private company from giving
someone a flu shot. Because the complaint does not state a
claim for which a federal court can grant relief, the court
must dismiss the lawsuit.
court ADOPTS Judge Joesph's
recommendation that this court dismiss the case for failure
to state a claim. Dkt. No. 5.
court ORDERS that this case is
order and the judgment to follow are final. A dissatisfied
party may appeal this court's decision to the Court of
Appeals for the Seventh Circuit by filing a notice of appeal
in this court within thirty (30) days of the
entry of judgment. See Fed. R. of App P. 3, 4. This
court may extend this deadline if a party timely requests an
extension and shows good cause ...