United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
Alicia Royal, proceeding pro se, filed a Complaint [ECF No.
1] against Defendant Nick Wheeler. 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 in
Forma Pauperis. 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).
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 Petition
establishes her inability to pay the filing fee.
assessing whether a plaintiff may proceed IFP, a 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). District courts have the power under 28 U.S.C.
§ 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 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 her entitlement to
relief is plausible, rather than merely speculative.
Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.
basis for the Plaintiff's suit appears to be as follows:
Attorney Nick Wheeler represented the Plaintiff after her
daughter was removed from her home by Child Protective
Services. She was unhappy with Attorney Wheeler's
representation and terminated his representation before her
case was resolved. Ultimately, she prevailed, and her
daughter returned home. She has sued Attorney Wheeler for
damages, but she also asks that he lose his law license and
be sent to prison.
the Plaintiff has not established that this Court has subject
matter jurisdiction. Federal courts are of limited
jurisdiction and may adjudicate claims if (1) the Complaint
alleges a violation of a federal statute or of the
Plaintiff's constitutional rights, or (2) if the
Complaint meets diversity requirements, which require that
the Plaintiff and Defendant are citizens of different states
and that the Plaintiff seeks damages in excess of $75, 000.
28 U.S.C. §§ 1331, 1332. Because the Complaint
indicates that all parties reside in Indiana, the diversity
requirements are not met. Therefore, for the Court to have
jurisdiction over her claim, the Plaintiff must allege that
the Defendants violated her federal or constitutional rights.
This she has not done.
the Court will deny the Plaintiff's request for leave to
proceed in forma pauperis, and will dismiss this action. The
Court grants the Plaintiff until September 15, 2018, to file
an amended complaint in this Court if she prefers to do so.
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). If the
Plaintiff chooses to file an amended complaint, her amended
complaint must contain allegations that plausibly suggest
that the Defendant has violated federal law. Along with an
amended complaint, the Plaintiff must also file a new
Petition to Proceed in Forma Pauperis or pay the
Plaintiff does not file an amended complaint by September 15,
2018, the Court will direct the Clerk to close this case.
foregoing reasons, the Court:
DENIES the Plaintiff's Motion for Leave to Proceed in