United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON FILING FEE, DISMISSING COMPLAINT, AND
DIRECTING FURTHER PROCEEDINGS
William T. Lawrence, Judge United States District Court
Southern District of Indiana
plaintiff shall have through December 21, 2016, in which to
either pay the $400.00 filing fee for this action or
demonstrate that he lacks the financial ability to do so. If
he seeks leave to proceed in forma pauperis, his
request must be accompanied by a copy of the transactions
associated with his institution trust account for the 6-month
period preceding the filing of this action on November 21,
plaintiff is a prisoner currently incarcerated at Westville
Correctional Facility (“Westville”). Because the
plaintiff is a “prisoner” as defined by 28 U.S.C.
§ 1915(h), this Court has an obligation under 28 U.S.C.
§ 1915A(b) to screen his complaint before service on the
defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court
must dismiss the complaint if it is frivolous or malicious,
fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief. In
determining whether the complaint states a claim, the Court
applies the same standard as when addressing a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006). To survive dismissal,
[the] complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se
complaints such as that filed by the plaintiff are construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers. Obriecht v. Raemisch,
517 F.3d 489, 491 n.2 (7th Cir. 2008).
plaintiff brings this action against the Client's
Financial Assistance Fund of the Indiana State Bar
Association. He alleges that the defendant, which compensates
individuals who lose money due to attorney malfeasance,
improperly denied his request for compensation. His claim for
compensation was based on his divorce attorney's alleged
malpractice from 2008 through 2010 that led to his divorce
proceedings occurring in the less favorable jurisdiction of
Illinois, rather than Indiana. The plaintiff's claims are
brought pursuant to 42 U.S.C. § 1983, and he also
alleges that this Court has diversity jurisdiction,
presumably because the plaintiff also attempts to bring a
state-law tort claim.
plaintiff's claim brought pursuant to § 1983 must be
dismissed for two independent reasons. First, to state a
claim under 42 U.S.C. § 1983, a plaintiff must allege
the violation of a right secured by the Constitution or laws
of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988).
“The color of state law element is a threshold issue;
there is no liability under [Section] 1983 for those not
acting under color of law.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). A person
acts under color of state law only when exercising power
“possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law.” United States v. Classic, 313 U.S.
299, 326 (1941). Because the Indiana State Bar Association is
not a governmental entity or otherwise acting with the
authority of the state, the plaintiff has failed to state a
claim under § 1983.
as noted above, to state a § 1983 claim, a plaintiff
must allege the violation of a right secured by the
Constitution or laws of the United States. His allegations
regarding the denial of compensation from the defendant do
not state a violation of a federal right, thus for this
additional reasons the plaintiff has failed to state a §
extent the plaintiff attempts to assert a state-law tort
claim, such a claim must also be dismissed. To state a
negligence claim, the plaintiff must demonstrate “(1)
duty owed to plaintiff by defendant; (2) breach of duty by
allowing conduct to fall below the applicable standard of
care; and (3) compensable injury proximately caused by
defendant's breach of duty.” Goodwin v.
Yeakle's Sports Bar & Grill, Inc., __ N.E.3d __,
2016 WL 6573824, *2 (Ind. 2016) (citation and quotation marks
omitted). Whether there is a legal duty owed is a legal
question, and the plaintiff's allegations do not support
his claim that the defendant owed him any legal duty to
compensate him for the actions of his divorce attorney.
Accordingly, any state-law tort claim is
plaintiff's complaint must be dismissed for each of the
reasons set forth above. The plaintiff shall have through
December 21, 2016, in which to show cause why Judgment
consistent with this Entry should not issue. See Luevano
v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th Cir.
2013) (“Without at least an opportunity to amend or to
respond to an order to show cause, an IFP applicant's
case could be tossed out of court without giving the
applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).
the dismissal of the plaintiffs complaint for the foregoing
reasons, there is no basis to grant the plaintiff s motion
for summary judgment, request to freeze the defendant's
assets, or compel ...