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 a Second
Amended Complaint [ECF No. 10] 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. 11]. For
the reasons set forth below, the Plaintiff's Motion is
DENIED. The Plaintiff's Complaint is DISMISSED pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) and is DISMISSED WITH
PREJUDICE for the claims against Penny K. Hix.
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, 28 U.S.C.
§ 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. Id. §
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. District courts have the
power under § 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 § 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).
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.
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 the First
Amended Complaint [ECF No. 5], which the Plaintiff did on
August 29, 2016. While it was shorter, the First Amended
Complaint still relied on legal conclusions and failed to
provide clear factual allegations suggesting entitlement to
relief. The Court denied this First Amended Complaint on
October 28, 2016 [ECF No. 9].
November 28, the Plaintiff filed a Second Amended Complaint
[ECF No. 10]. The Plaintiff'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. The Plaintiff in his Complaint
couches little more than names and dates amid an endless
string of legal conclusions. Absent factual allegations to
support his legal conclusions, the Plaintiff's
entitlement to relief does not rise above the “merely
speculative” level. Tamayo, 526 F.3d at 1083.
Furthermore, the Plaintiff has not established how one of the
defendants, Penny K. Hix, a waitress, violated his rights
under 42 U.S.C. § 1983. The Plaintiff does not proffer
sufficient factual allegations that Hix as private citizen
engaged in state action in such a way as to become a proper
§ 1983 defendant. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 823 (7th Cir. 2009).
Accordingly, the Second Amended Complaint is dismissed for
failure to state a claim upon which relief can be granted.
Furthermore, the claims against Penny K. Hix are dismissed
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
February 13, 2017, 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 February 13,
2017, 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.
foregoing reasons, the Court DISMISSES the Second Amended
Complaint [ECF No. 10] and DISMISSES WITH PREJUDICE the
claims against Penny K. Hix. The Court DENIES the
Plaintiff's Motion for Leave to Proceed in forma
pauperis [ECF No. 11]. The Court GRANTS the Plaintiff
until February 13, 2017, to file an amended complaint,