United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
Brown, Jr., a Plaintiff proceeding pro se, filed an Amended
Complaint [ECF No. 5] against Defendants David Gilbert, Penny
K. Hix, Jess Alumbaugh, J. Mitchener, T. Brady, Alex
Kenworthy, B. McKnight, J. Swanson, D. Sessoms, J. Hurlburt,
B. Ridgway, Brian F. McLane, Dana J. Kenworthy, Warrens Haas,
Caralyn J. Mawery, the City of Marion, the County of Grant,
and Jane Does. He also filed a Motion for Leave to Proceed
in forma pauperis [ECF No. 2]. For the reasons set
forth below, the Plaintiff's Motion is DENIED. The
Plaintiff's Complaint is DISMISSED pursuant to 28 U.S.C.
a plaintiff must pay a statutory filing fee to bring an
action in federal court. 28 U.S.C. § 1914(a). However,
the federal in forma pauperis (IFP) statute, 28
U.S.C. § 1915, provides indigent litigants an
opportunity for meaningful access to the federal courts
despite their inability to pay the costs and fees associated
with that access. See Neitzke v. Williams, 490 U.S.
319 (1989). To authorize a litigant to proceed IFP, a court
must make two determinations: first, whether the litigant is
unable to pay the costs of commencing the action, §
1915(a)(1); and second, whether the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief, § 1915(e)(2)(B).
the first inquiry, an indigent party may commence an action
in federal court, without prepayment of costs and fees, upon
submission of an affidavit asserting an inability “to
pay such fees or give security therefor.” Id.
§ 1915(a). Here, the Plaintiff's Motion establishes
that he is unable to prepay the filing fee.
inquiry does not end there, however. In assessing whether a
plaintiff may proceed IFP, a court must look to the
sufficiency of the complaint to determine whether it can be
construed as stating a claim for which relief can be granted
or seeks monetary relief against a defendant who is immune
from such relief. Id. §1915(e)(2)(B). District
courts have the power under 28 U.S.C. § 1915(e)(2)(B) to
screen complaints even 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 28 U.S.C.
§ 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
state a claim under the federal notice pleading standards, a
complaint must set forth a “short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Factual allegations are
accepted as true and need only give “‘fair notice
of what the . . . claim is and the grounds upon which it
rests.'” EEOC v. Concentra Health Serv.,
Inc., 496 F.3d 773, 776-77 (7th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). However, a plaintiff's allegations must show
that his entitlement to relief is plausible, rather than
merely speculative. Tamayo v. Blagojevich, 526 F.3d
1074, 1083 (7th Cir. 2008).
August 5, 2016 Order, Judge Moody ordered the Plaintiff's
initial Complaint stricken because it was nearly 100-pages
long and included “recitations of legal conclusions . .
. [but] hardly any factual allegations.” (Order 2, ECF
No. 4.) The Plaintiff was given opportunity to file an
amended complaint, which the Plaintiff did on August 29,
2016. While it is shorter, the Amended Complaint [ECF No. 5]
still relies on legal conclusions and fails to provide clear
factual allegations suggesting entitlement to relief.
Brown's apparent legal theory is that all of the
Defendants are liable for violating his civil rights based on
their various roles in the Order of Protection proceedings.
Brown devotes a paragraph in his Complaint to each step in
the proceedings, couching little more than names and dates
amid an endless string of legal conclusions. Absent factual
allegations to support his legal conclusions, Brown's
entitlement to relief does not rise above the “merely
speculative” level. Tamayo, 526 F.3d at 1083.
Accordingly, the Amended Complaint is dismissed for failure
to state a claim upon which relief can be granted.
the aforementioned, the Plaintiff's request to proceed
without prepayment of fees is denied, and the Amended
Complaint is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). The Court grants the Plaintiff until
November 27, 2016, to file an amended complaint. See
Luevano, 722 F.3d at 1022 (stating that a litigant
proceeding under IFP statute has the same right to amend a
complaint as fee-paying plaintiffs have). When drafting his
amended complaint, the Plaintiff should state the key facts
supporting his claim, rather than merely provide legal
conclusions. Additionally, the Plaintiff should specify which
Defendants the claims are asserted against and what each
Defendant did in relation to that claim, including the date
it happened. Along with an amended complaint, the Plaintiff
must also file a new Petition to Proceed Without Prepayment
of Fees and Costs or pay the filing fee. If the
Plaintiff does not file an amended complaint by DATE, the
Court will direct the Clerk to close this case. Should he
choose, the Plaintiff is permitted to pursue his claims in
state court. See Doe-2 v. McLean Cnty. Unit Dist. No. 5
Bd. of Dirs., 593 F.3d 507, 513 (7th Cir. 2010).
foregoing reasons, the Court DENIES the Plaintiff's
Motion for Leave to Proceed in forma pauperis [ECF
No. 2] and DISMISSES the Amended Complaint [ECF No. 5]. The
Court GRANTS the Plaintiff until November 27, 2016, to file
an amended complaint, accompanied by a new ...