United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
filed a pro se complaint related to her former
employment with Defendant. (Docket #1). This matter comes
before the court on Plaintiff's motion for leave to
proceed in forma pauperis. (Docket #2). In order to
allow a plaintiff to proceed without paying the filing fee,
the Court must first decide whether the plaintiff has the
ability to pay the fee. 28 U.S.C. §§ 1915(a).
Plaintiff avers that she earns approximately $1, 400 per
month, while her monthly expenses approach $1, 800. (Docket
#2 at 2-3). She has no savings and is currently in a Chapter
13 bankruptcy repayment plan. Id. at 3-4. The Court
is satisfied that Plaintiff is unable “to provide
h[er]self . . . with the necessities of life” if
required to pre-pay the $400.00 filing fee in this matter.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948); Brewster v. N. Am. Van Lines, Inc.,
461 F.2d 649, 651 (7th Cir. 1972). The Court will therefore
grant her motion for leave to proceed in forma
notwithstanding the payment of any filing fee, the Court must
dismiss the complaint of a person proceeding in forma
pauperis if it raises claims that are “frivolous
or malicious, ” which fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
The court may, therefore, dismiss a claim as frivolous where
it is based on an indisputably meritless legal theory or
where the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. “Malicious, ”
although sometimes treated as a synonym for “frivolous,
” “is more usefully construed as intended to
harass.” Lindell v. McCallum, 352 F.3d 1107,
1109- 10 (7th Cir. 2003) (citations omitted).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [she] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and her
statement need only “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)). However, a complaint that offers
“labels and conclusions” or “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). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. The court is obliged to give
the plaintiff's pro se allegations,
“however inartfully pleaded, ” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
allegations are not terribly clear, but the Court can glean
the following. She was employed with Defendant for many
years, but was recently terminated because of a “code
violation.” (Docket #1 at 2). The Court assumes that a
“code violation” means that she committed some
sort of error in her work. Plaintiff claims that many other
employees made similar code violations but were either kept
on or at least allowed to resign. Id. at 3.
then offers two anecdotes about her employment. The first is
that one day when she was off of work on medical leave
pursuant to the Family Medical Leave Act
(“FMLA”), 28 U.S.C. § 2601 et seq.,
her supervisor told an assembled group of employees about the
medical reason for her absence. Id. at 2-3. The
second is that a different supervisor would sometimes
“call me in the office and speak about his personal
(sex) life.” Id. at 3.
complaint fails to invoke this Court's jurisdiction.
Federal courts are courts of limited jurisdiction, and may
only hear cases in two primary categories: 1) those raising
issues of federal law, known as “federal
question” jurisdiction, and 2) those between parties
who are citizens of different states and which involve an
amount in controversy exceeding $75, 000.00, known as
“diversity” jurisdiction. See 28 U.S.C.
§§ 1331 and 1332(a). Despite Plaintiff's
allegation otherwise, (Docket #1 at 4), diversity
jurisdiction is clearly lacking, as both Plaintiff and
Defendant are located in Wisconsin.
did not check the box on the complaint form stating that she
intended to sue “for a violation of federal
law[.]” Id. Nevertheless, even if this was an
error on her part, her allegations do not state a claim for
relief under any federal employment statutes. Plaintiff does
not say that her termination was because of her membership in
a protected class, which would violate Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
or because she took FMLA leave, which may constitute unlawful
retaliation. Rather, simply being terminated for making a
work-related error is not, absent other circumstances, any
form of actionable harassment. Even if Plaintiff claimed that
the firing was related to the anecdotes she provided,
Plaintiff would need to offer much more detail about the
events surrounding them-the identity of the people
responsible, what they said, when they said it, and why it
constituted a form of harassment rather than mere
vulgarity-to get anywhere close to a plausible case of
Court will afford Plaintiff an opportunity to amend her
complaint to cure the deficiencies described in this Order.
If she wishes to proceed, she must file an amended complaint
on or before January 10, 2020. Failure to
file an amended complaint within this time period will result
in dismissal of this action. Civ. L. R. 41(c).
amended complaint must bear the docket number assigned to
this case and must be labeled “Amended
Complaint.” The amended complaint supersedes the prior
complaint and must be complete in itself without reference to
the original complaint. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1056-57 (7th Cir. 1998). In Duda, the Court of
Appeals emphasized that in such instances, the “prior
pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at
1057 (citation omitted). If an amended complaint is received,
the Court will screen it pursuant to 28 U.S.C. §
IT IS ORDERED that Plaintiff's motion to proceed in
forma pauperis (Docket #2) be and the same is hereby
FURTHER ORDERED that Plaintiff shall file an amended
complaint in accordance with the terms of this Order on or
before January 10, 2020, or this action will be ...