United States District Court, N.D. Indiana
JAMES K. ARINGTON, Plaintiff,
WORKER'S COMPENSATION BOARD OF INDIANA, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN, CHIEF JUDGE
case was reassigned to Chief Judge Theresa L. Springmann for
all further proceedings pursuant to General Order 2017-4 [ECF
No. 16] effective May 1, 2017. James K. Arington, a Plaintiff
originally proceeding pro se and now represented by counsel,
filed a Amended Complaint [ECF No. 17] against 26 Defendants:
Worker's Compensation Board of Indiana; Linda Hamilton;
Mary Taivalkoski; James Sarkisian; Daniel G. Foote; Andrew S.
Ward; Gerald Ediger; Crysten Lefavour; Dian Parsons; Amtrust
North America, Inc.; Alane Janicek; Wesco Insurance Company;
Case Management Relief, LLC; Julie Funk; Sue Mitson; Summit
Physical Therapy, LLC; Andreas Lohmar; Physical Medicine
Consultants, LLC; Thomas L. Lazoff, M.D.; Reconstructive Foot
& Ankle Specialists, LLC; Jonathan Norton, M.D.; Fort
Wayne Physical Medicine, P.C.; Mark V. Reecer, M.D.;
Orthopaedics-Indianapolis, Inc.; Michael P. Shea, M.D.;
Eaton's Trucking Service, Inc.; and an unknown employee
of Fort Wayne Physical Medicine, P.C. named Billie. He also
filed a Motion for Leave to Proceed in forma pauperis [ECF
No. 2] on August 29, 2016. For the reasons set forth below,
the Plaintiff's Motion is DENIED and the Plaintiff's
Complaint is DISMISSED WITH PREJUDICE 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, 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. 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.
October 19, 2016, Judge DeGuilio ordered the Plaintiff's
initial Complaint stricken because it did not set forth
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. In that Complaint,
the Plaintiff alleged a massive conspiracy involving high
ranking Indiana officials for the limited grievance of
alleged misconduct by the Indiana Workers Compensation Board.
The Plaintiff alleged constitutional violations where there
was no constitutionally protected interest, and made several
conclusory allegations of fraud and misconduct by the
multitude of named Defendants. The Plaintiff failed to allege
how the appellate remedies available to him for his workers
compensation grievance were carried out improperly, violating
his due process rights. Even though the Complaint was
liberally construed given the Plaintiff's pro se status,
see Erickson v. Pardus, 551 U.S. 89, 94 (2007), the
Plaintiff's allegation failed to arise to a cause of
action in which relief could be granted.
Plaintiff was given leave to file an Amended Complaint. The
Plaintiff was also granted three extensions of time to file.
Although the Plaintiff has amended his Complaint and is now
represented by an attorney, the Plaintiff's Amended
Complaint does not give fair notice of his claims and the
grounds upon which they rest. The Plaintiff did not name high
ranking state officials as defendants in his Amended
Complaint, but the Amended Complaint still suffers from the
fatal defects contained in the first Complaint. The Plaintiff
generally alleges that all 26 of the Defendants violated his
rights under a number of varied theories, many of which are
not recognized constitutional harms in the context of a
worker compensation grievance. For example, in Count One, the
Plaintiff alleges that all the Defendants acted with
deliberate indifference in providing medical care under 42
U.S.C. § 1983, as well as the First and Eighth
Amendments. (Am. Compl. ¶ 78; ECF No. 17.) In Count Two,
the Plaintiff alleges his due process rights were violated by
all the Defendants under 42 U.S.C. § 1983, as well as
the First, Fifth, and Fourteenth Amendments, but without
providing particularity as to how these violations occurred.
(Id. at ¶ 79) Like Counts One and Two, the
Plaintiff in Counts Three through Seven continues alleging
that all of the Defendants committed constitutional
violations-equal protection under the law, deliberate
indifference in providing medical care, and failure to
provide due process-merely by incorporating by reference the
prior 77 paragraphs of the Amended Complaint. (Id.
at ¶¶ 80-85.) The Plaintiff follows the same
pattern in alleging tort claims of negligence, gross
negligence, breach of fiduciary duty, and “tort claims
of bad faith insurance contract, ” without providing
any facts that would support those claims. (Id. at
Plaintiff's Amended Complaint lacks organization and
coherence, requiring the Court to extrapolate and infer
facts. Where a “lack of organization and basic
coherence renders a complaint too confusing to determine the
facts that constitute the alleged wrongful conduct, dismissal
is an appropriate remedy.” Standard v. Nygren,
658 F.3d 792, 798 (7th Cir. 2011). The Defendants have not
been provided notice as to what the claims are and the
grounds on which they rest. “To form a defense, a
defendant must know what he is defending against; that is, he
must know the legal wrongs he is alleged to have committed
and the factual allegations that form the core of the claims
asserted against him.” Id. at 799.
Plaintiff has failed to cure the deficiencies identified in
the October 19, 2016, Order. The Plaintiff's Amended
Complaint does not “contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face.” Kolbe & Kolbe Health
& Wealthfare Benefit Plan v. Med. Coll. of Wis.
Inc., 657 F.3d 496, 502 (7th Cir. 2011). Now represented
by an attorney, the Court does not see how the Plaintiff in a
second amended complaint could set forth facts sufficient to
state a federal cause of action that is plausible on its
face. “When a complaint fails to state a claim for
relief, the plaintiff should ordinarily be given an
opportunity, at least upon request, to amend the complaint to
correct the problem if possible.” Bogie v.
Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013).
“Leave to amend need not be granted, however, if it is
clear that any amendment would be futile.” Id.
(citing Garcia v. City of Chi., 24 F.3d 966, 970
(7th Cir. 1994)). The Plaintiff has already been granted one
opportunity to amend his complaint, and it has proven futile.
Accordingly, the Court denies the Motion to Proceed In Forma
Pauperis and dismisses the Amended Complaint with prejudice.
foregoing reasons, the Court DISMISSES WITH PREJUDICE the
Amended Complaint [ECF No. 17] and DENIES the Plaintiff's
Motion for Leave to Proceed in forma pauperis [ECF No. 2].
Any summons received in this case were issued by the Clerk of
Court IN ...