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Fender v. Apple

United States District Court, N.D. Indiana, LaFayette Division

October 19, 2016

WAYNE ALLEN FENDER, DONNA MARIE PULOUS, Plaintiffs,
v.
DEBORAH APPLE, et al., Defendants.

          OPINION AND ORDER

          RUDY LOZANO, JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on the Petition to Proceed Without Pre-Payment of Fees or Costs, filed by pro se Plaintiff, Wayne Fender, on October 16, 2015 (DE #2); and the Motion to Proceed in Forma Pauperis, filed by pro se Plaintiff, Donna Pulous, on September 9, 2016 (DE #7). For the reasons set forth below, the motions (DE ##2, 7) are both DENIED and the amended complaint (DE #5) is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B).

         The two plaintiffs in this case, Wayne Fender and Donna Pulous, filed a motion for leave to proceed in forma pauperis on October 16, 2015 (DE #2). With regard to pro se Plaintiffs' request to proceed IFP, the IFP statute, 28 U.S.C. section 1915, allows an indigent plaintiff to commence a civil action without prepaying the administrative costs (e.g. filing fee) of the action. See 28 U.S.C. section 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25, 27 (1992). When presented with an IFP application, the district court makes two determinations: (1) whether the suit has sufficient merit; and (2) whether the plaintiff's poverty level justifies IFP status. See 28 U.S.C. section 1915(e)(2); Denton, 504 U.S. at 27; Smith-Bey v. Hosp. Adm'r, 841 F.2d 751, 757 (7th Cir. 1988). If a court finds that the suit lacks sufficient merit or that an inadequate showing of poverty exists, the court must deny the in forma pauperis application. See Smith-Bey, 841 F.2d at 757.

         District courts have the power under 28 U.S.C. § 1915(e)(2)(B) to screen complaints before service of the complaint on the defendants, and must dismiss the complaint if it fails to state a claim. Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999). Courts apply the same standard under section 1915(e)(2)(B) as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1018, 1027 (7th Cir. 2013).

         In a lengthy order dated May 25, 2016, this Court noted that only Fender filed a petition to proceed in forma pauperis. The form specifically states “[i]f there is more than one plaintiff, each of you must complete a separate form.” (AO 239.) As such, this Court ordered Pulous to file a petition to proceed without pre-payment of fees and costs. Pulous filed a motion for leave to proceed in forma pauperis on September 9, 2016 (DE #7). The financial prong has been met; however, the Court finds the suit does not have sufficient merit to continue.

         Plaintiffs originally filed a complaint on October 16, 2015 (DE #1). This Court struck the complaint, finding it was difficult to understand and discern the causes of action, it contained a laundry list of laws which were violated without specifying in a straightforward manner the factual legal basis for each claim; and that ultimately, it did not satisfy the requirements of Federal Rule of Civil Procedure 8(a)(2).[1] (DE #4 at 2-5.) The Court granted Plaintiffs leave “to file a single amended complaint which complies with the requirements of Rule 8.” (DE #4 at 3.) Moreover, the Court cautioned Plaintiffs that the amended complaint needed to contain a short and plain statement of what happened to Plaintiffs to give rise to their claims, and that they should state when the events occurred and clearly explain how each defendant was involved with each claim they are raising against that defendant. (DE #4 at 3-4.) The Court also cited case law to Plaintiffs, stating the amended complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Finally, the Court warned Plaintiffs that “if the allegations in the amended complaint do not comply with Rule 8 and the other requirements set forth in this order, the amended complaint will be dismissed with prejudice.” (DE #4 at 5.)

         The amended complaint, filed on June 13, 2016, has a section entitled “cause(s) of action with supporting facts” and Plaintiffs listed the following:

1. Child endangerment
2. Religious bias & anti-semitism
3. Open discriminatory practices
4. Human, civil & constitutional rights violations
5. Collusion and conspiracy
6. Perjury
7. Intentional harm to a child through ...

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