United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE.
Jalen Gilmore, proceeding pro se, filed a Complaint [ECF No.
1] against two Defendants: the Marion Police Department and
the Grant County Sheriff Department. He 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 WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and
he is GRANTED additional time to amend his 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 his 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 Motion establishes
that he is unable to prepay the filing fee.
inquiry does not end there, however. In assessing whether a
plaintiff may proceed IFP, a court must 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. See 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).
See 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. See Tamayo v. Blagojevich, 526
F.3d 1074, 1083 (7th Cir. 2008).
Complaint, the Plaintiff alleges that, on July 3, 2016, a
Grant County police officer approached him as he sat in his
vehicle near a bridge. After some questioning, the police
officer punched him, pulled him out of his vehicle, and threw
him to the ground. He was arrested and summoned to court, and
his car was impounded.
11, 2016, three police officers approached the Plaintiff
because he was trespassing. The Plaintiff does not specify
whether the officers worked for Grant County, Marion, or some
other entity. The police officers obtained the
Plaintiff's consent to search his backpack, handcuffed
him, and placed him in the back of the patrol vehicle as they
performed the search. On August 17, 2017, the Plaintiff
alleges that police officers used excessive force as they
detained him for trespassing at a hospital. Again, the
Plaintiff does not specify whether the officers worked for
Grant County, Marion, or some other entity. On July 6, 2018,
the Plaintiff asserts that police officers detained him based
on a call that an individual was running around in boxers.
Though the Plaintiff was jogging during these hours, he
claims he was not the subject of this call. The Plaintiff
does not specify whether these officers worked for Grant
County, Marion, or some other entity.
11, 2018, the Plaintiff was asked to leave CVS because he was
wearing a blanket instead of a shirt. When he returned with a
shirt, he alleges a Marion police officer wrongfully detained
him for trespassing, allowed another customer to purchase
items for the Plaintiff, and then withheld these items from
the Plaintiff. On July 12, 2018, the Plaintiff claims he was
wrongfully detained by Marion police officers based on a call
regarding a theft by an individual in tan clothing. However,
at the time of the arrest, the Plaintiff wore white and pink
Plaintiff alleges wrongful detainment and excessive force
claims against the Defendants, Marion Police Department and
the Grant County Sheriff's Department. The Plaintiff
seeks both money damages and injunctive relief. However, the
Plaintiff fails to state a claim upon which relief may be
granted. First, the Marion Police Department is not a proper
defendant. In the City of Marion, the mayor supervises the
police department and appoints the department head.
See Ind. Code § 36-4-5-3; Ind. Code §
36-4-9-2; Ind. Code § 36-8-2-2. Because of this
supervisory structure, the Marion Police Department has no
separate legal existence from the City of Marion, and
therefore it is not a suable entity. See Argandona v.
Lake Cty. Sheriff's Dep't, 2007 WL 518799, at *3
(N.D. Ind. 2007) citing Fain v. Wayne Cty. Auditor's
Office, 388 F.3d 257, 261 (7th Cir. 2004) and
Harrison v. City of Chicago, No. 05 C 2680, 2005 WL
3542576 at *2 (N.D.Ill.2005). Therefore, the Plaintiff may
not pursue his claim against the Marion Police Department,
and must instead pursue a claim against the City of Marion
in the Complaint, the Plaintiff does not specify whether the
officers involved in the allegations from July 11, 2016;
August 17, 2017; or July 6, 2018, worked for Grant County,
Marion, or some other entity. Further, the Complaint only
alleges one incident involving the Grant County Sheriff's
Department, occurring on July 3, 2016. To pursue a claim
under § 1983 against a local government unit, a
plaintiff must show that his injury was the result of that
unit's official policy or custom. See Rice ex rel.
Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir.
2012). If officers of the Grant County Sheriff's
Department only committed one act, more than two years ago,
the Plaintiff has not stated a claim: first because a single
allegation is not enough to plead a policy or custom, and
second because the single event is outside the statute of
limitations. See Thomas v. Cook Cty. Sheriff's
Dep't., 604 F.3d 293, 303 (7th Cir. 2010)
(“[T]here is no clear consensus as to how frequently
such conduct must occur to impose Monell liability,
except that it must be more than one instance[.]”)
(citations and internal quotation marks omitted);
Behavioral Inst. of Ind., LLC v. Hobart City of Common
Council, 406 F.3d 926, 929 (7th Cir. 2005) (noting the
two-year statute of limitations for § 1983 claims).
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 September 17, 2018, to file
an amended complaint consistent with this Opinion and Order.
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). Along with
an amended complaint, the Plaintiff must also file a new
Petition to Proceed Without Prepayment of Fees and ...