United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, Judge United States District Court
matter is before the Court on: (1) the Amended Complaint
filed on August 25, 2016 (DE #6); (2) a Petition to Proceed
without Pre-payment of Fees and Costs filed by Thomas J. Ray
on August 25, 2016 (DE #5); and (3) an application to proceed
in forma pauperis filed by Kwame J. Ray on August
25, 2016 (DE #7). For the reasons explained below, Thomas J.
Ray's request to proceed in forma pauperis is
DENIED AS MOOT, Kwame J. Ray's request to proceed in
forma pauperis is DENIED, and the Amended Complaint is
DISMISSED WITH PREJUDICE as to the Clerk of the Indiana
Supreme Court of Appeals, and WITHOUT PREJUDICE as to
Methodist Hospital South Lake Campus.
August 3, 2016, this Court outlined (for a second time) the
shortcomings of the complaints pending at that time,
consolidated the three related cases, dismissed each of the
complaints, and permitted Thomas J. Ray and Kwame J. Ray
another opportunity to file an amended complaint that
complied with the requirements of Federal Rule of Civil
Procedure 8. Thomas J. Ray and Kwame J. Ray were also given
another opportunity to seek in forma pauperis
(“IFP”) status. They were cautioned that,
“if an amended compliant is filed that again fails to
state a claim, the action will be dismissed with
prejudice.” (DE #4).
Amended Complaint was filed on August 25, 2016, listing only
Kwame J. Ray as a plaintiff, and listing only Methodist
Hospital South Lake Campus (“Methodist”) as a
defendant in the caption. (DE #6). The body of the complaint,
however, also lists the Clerk of the Indiana Court of Appeals
as a defendant. (DE #6 at 2). Although only Kwame Ray is
listed as a plaintiff, IFP petitions were filed by both Kwame
J. Ray and Thomas J. Ray. Because Thomas J. Ray is not a
plaintiff to the Amended Complaint, his IFP petition is
DENIED AS MOOT.
regard to Kwame J. Ray's (hereinafter
“Plaintiff”) 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
IFP application. See Smith-Bey, 841 F.2d at 757.
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). Here, the financial prong has been met; however,
the Court finds the suit does not have sufficient merit to
plaintiff is required to include allegations in the complaint
that “plausibly suggest that the plaintiff has a right
to relief, raising that possibility above a
‘speculative level'” and, “if they do
not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 776 (7th Cir. 2007) (quoting in part Twombly,
550 U.S. at 569 n. 14 (2007)). “Factual allegations
must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (quotation marks, ellipsis,
citations and footnote omitted). Thus, a “plaintiff
must do better than putting a few words on paper that, in the
hands of an imaginative reader, might suggest that
something has happened to her that might be
redressed by the law.” Swanson v. Citibank,
N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in
Court notes that Plaintiff is appearing pro se in
this matter. Generally, although “pro se litigants are
masters of their own complaints” and “[d]istrict
judges have no obligation to act as counsel or paralegal to
pro se litigants, ” Myles v. United States,
416 F.3d 551, 552 (7th Cir. 2005), a document filed pro
se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However,
even pro se plaintiffs must “make their
pleadings straightforward so that judges and adverse parties
need not try to fish a gold coin from a bucket of mud.”
United States ex rel. Garst v. Lockheed-Martin
Corp., 328 F.3d 374, 378 (7th Cir. 2003). They must
“be presented with clarity sufficient to avoid
requiring a district court or opposing party to forever sift
through its pages . . . .” Jennings v. Emry,
910 F.2d 1434, 1436 (7th Cir. 1990). Federal Rule of Civil
Procedure 8(a)(2) requires that complaints contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” See Vicom, Inc.
v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 775-76
(7th Cir. 1994) (“A complaint that is prolix and/or
confusing makes it difficult for the defendant to file a
responsive pleading and makes it difficult for the trial
court to conduct orderly litigation.”). In sum, Rule 8
requires a complaint to be presented with
“intelligibility sufficient for a court or opposing
party to understand whether a valid claim is alleged and if
so what it is.” Vicom, 20 F.3d at 775.
case, the Amended Complaint, like earlier complaints, alleges
that the Clerk of the Indiana Supreme Court of Appeals
violated Plaintiff's rights under the 5th,
6th, 7th, 8th and
10thAmendments of the United States Constitution.
It has added violations of additional provisions too: the
1st, 2nd, 3rd,
4th, and 14th Amendments of the United
States Constitution. The factual recitations of earlier
complaints are no longer included. The current complaint is
completely lacking of factual allegations against the Clerk
of the Indiana Court of Appeals. Plaintiff has not satisfied
the federal notice pleading standards in accordance with Rule
8. Accordingly, Plaintiff has failed to state a claim against
the Clerk of the Indiana Court of Appeals, and th3e Clerk of
the Indiana Court of Appeals is dismissed with prejudice.
regard to Methodist, the Amended Complaint alleges that one
of Methodist's employees interviewed Plaintiff's
children and, as a result of that interview, the department
of child and family services became involved. The Amended
Complaint indicates that, “to the best of my knowledge
this is a Medical Malpractice Law Sue [sic] Complaint.”
(DE #6 at 4). Plaintiff seeks injunctive relief and money
damages because Methodist caused him to “stop being a
Court has an obligation to ensure that it has proper subject
matter jurisdiction over each lawsuit that is brought in this
Court. Wisconsin Knife Works v. National Metal
Crafters, 781 F.2d 1280, 1282 (7th Cir. 1986). This
Court is a court of limited jurisdiction, and in the absence
of either diversity jurisdiction or federal question
jurisdiction, the case must be dismissed. See Bovee v.
Broom, 732 F.3d 743, 744 (7th Cir. 2013).
this Court to have diversity jurisdiction over
Plaintiff's claim against Methodist, the amount in
controversy must exceed $75, 000, and there must be diversity
of citizenship between plaintiff and defendant. The complaint
must allege the amount in controversy and the citizenship of
all parties. Guaranty Nat'l Title Company, Inc. v.
J.E.G. Associates, 101 F.3d 57, 58 (7th Cir. 1996);
Zenith Electronics Corp. v. Kimball International Mfg.,
Inc., 114 F.Supp.2d 764, 767 (E.D. Ill. 2000). The
Amended Complaint does not allege the amount in controversy
or the citizenship of the parties. Plaintiff has not alleged
diversity jurisdiction and nothing in the Amended Complaint
suggests that there is diversity of citizenship between the
question jurisdiction, pursuant to 28 U.S.C. section 1331,
requires that the action arise “under the Constitution,
laws, or treaties of the United States.” 28 U.S.C.
§ 1331. “Ordinarily, the basis for
federal-question jurisdiction must be apparent from the face
of the plaintiff's well-pleaded complaint.”
Crosby v. Cooper B-Line, Inc., 725 F.3d 795, 800
(7th Cir. 2013); see also Northeastern Rural Elec.
Membership Corp. v. Wabash Valley Power Association, 707
F.3d 883 (7th Cir. 2013). Plaintiff has cited to no federal
statute or law in reference to his claims against Methodist.
The Amended Complaint is brought using a form for claims
under 42 U.S.C. section 1983. Under 42 U.S.C. § 1983,
“[e]very person who, under color of any statute ... of
any State ... subjects, or causes to be subjected, any
citizen of the United States ... to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law ....” See 42 U.S.C. § 1983). To
establish a claim under § 1983, a plaintiff must show
both that a constitutional right has been violated and that
the alleged wrongdoer acted under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1987). Plaintiff
cannot state a claim against Methodist under 42 U.S.C.
section 1983 because Methodist is not a state actor.
Accordingly, this Court does not have subject matter
jurisdiction over Plaintiff's claim against Methodist.
this Court had subject matter jurisdiction over
Plaintiff's case, the factual allegations still fail to
state a claim for which relief could be granted. The Amended
Complaint contains no facts from which it can be concluded
that Methodist is liable to Plaintiff for medical malpractice
or any other cause of action. The Amended Complaint does not
contain sufficient factual matter to “state a ...