United States District Court, N.D. Indiana, Fort Wayne Division
APRIL L. MOORE, Plaintiff,
AFSCME INTERNATIONAL Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
L. Moore, a plaintiff proceeding pro se, filed a Complaint
[ECF No. 1] against the Defendant, AFSCME International. She
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. §
1915(e)(2)(B)(ii), and she is GRANTED additional time to
amend her Complaint, accompanied either by the statutory
filing fee or another Petition to Proceed Without Pre-Payment
of Fees and Costs. If the Plaintiff fails to amend her
Complaint within the time allowed, the Clerk will be directed
to close this case without further notice to the Plaintiff.
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).
begin, 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)(1). Here, the Plaintiff's Motion establishes that
she is unable to prepay the filing fee.
inquiry, though, does not end there. The Court must also 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).
Under 28 U.S.C. § 1915(e)(2)(B), district courts have
the power 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 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.
the Plaintiff's Complaint states that the action has been
brought for employment discrimination pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e-2000e-17. Additionally, the Plaintiff has received a
Notice of Right to Sue from either the Equal Employment
Opportunity Commission or the Indiana Civil Rights Commission
as of August 13, 2017, but did not attach the Notice to the
Complaint. Further, the Plaintiff does not state any facts or
claims related to employment discrimination in the Complaint.
To state a claim for employment discrimination, the Plaintiff
should, at a minimum, detail specific instances when the
discrimination took place; where the discrimination took
place; why she believes the discrimination took place; and
who participated in the discrimination. The Plaintiff appears
to be complaining that her union did not adequately represent
her, but does not allege that the failure was related to her
race, gender, or any other protected category. As presented,
the Complaint does not contain a short and plain statement
alleging discrimination by the Defendant against the
Plaintiff and, thus, does not state a claim for relief.
the aforementioned, the Plaintiff's request to proceed
without prepayment of fees is denied, and the Complaint is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The
Court grants the Plaintiff until November 20, 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 her amended complaint, the Plaintiff
should describe factual details that explain the alleged
discrimination by the Defendant, including who took the
discriminatory action and when, and what makes the Plaintiff
believe that the action was based on her race, color,
religion, sex, or national origin. If one of these protected
categories is not alleged to have motivated the Defendant,
the Plaintiff's amended complaint must otherwise state
what duty she believes the Defendant breached and provide
basic supporting facts. See, e.g., Filippo v. N.
Ind. Pub. Serv. Corp., 141 F.3d 744, 748 (7th Cir. 1998)
(setting out elements for breach of duty of fair
representation). 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.
Plaintiff does not file an amended complaint by November 20,
2017, the Court will direct the Clerk to close this case.
foregoing reasons, the Court:
DENIES the Plaintiff's Motion for Leave to Proceed in