United States District Court, S.D. Indiana, Indianapolis Division
MARK A. PRICE, JR., Plaintiff,
INDY TRADING POST, Defendant.
JANE MAGNUS-STINSON, CHIEF JUDGE.
before the Court are pro se Plaintiff Mark A. Price,
Jr.'s Complaint, [Filing No. 1], and Motion to
Proceed In Forma Pauperis, [Filing No. 2]. This
Order first addresses Mr. Price's Motion to Proceed In
Forma Pauperis and then screens his Complaint pursuant to 28
U.S.C. § 1915(e)(2). The Court concludes that certain
claims must be dismissed. The remaining claims should not
proceed while Mr. Price's criminal matter remains
pending. The Court therefore stays this matter as to the
claims that remain.
Motion to Proceed In Forma Pauperis
U.S.C. § 1915(a) permits the Court to authorize a
plaintiff to file a lawsuit “without prepayment of
fees” if the plaintiff “submits an
affidavit” demonstrating that he lacks the assets to
pay the filing fee at this time. 28 U.S.C. § 1915(a)(1).
Mr. Price's Motion to Proceed In Forma Pauperis, ,
meets this standard, and is therefore
GRANTED. 28 U.S.C. § 1915(a).
Court notes that, while in forma pauperis status
allows the plaintiff to proceed without pre-payment of the
filing fee, the plaintiff remains liable for the full fees.
Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir.
1997) (every in forma pauperis litigant is liable
for the filing fee; “all [18 U.S.C.] § 1915(a)
does for any litigant is excuse the pre-payment of
fees”) (emphasis in original). The Court does not have
the authority to waive the filing fee, and it remains due
despite Plaintiff's in forma pauperis status.
Fiorito v. Samuels, 2016 WL 3636968, *2 (C.D. Ill.
2016) (“The Court does not have the authority to waive
a filing fee”); McDaniel v. Meisner, 2015 WL
4773135, *5 (E.D. Wis. 2015) (same principle). The filing fee
for in forma pauperis litigants is $350.
See USDC Fee Schedule at
(stating that the $400 filing fee includes a $50
administrative fee, but that the administrative fee
“does not apply to…persons granted in forma
pauperis status under 28 U.S.C. § 1915”).
Immediate payment is not required, however the $350 balance
to 28 U.S.C. § 1915(e)(2), the Court shall dismiss a
case brought by a plaintiff proceeding in forma
pauperis “at any time if the court determines that
. . the action . . . is frivolous or malicious; . . . fails
to state a claim on which relief may be granted; or . . .
seeks monetary relief against a defendant who is immune from
such relief.” In determining whether a complaint states
a claim, the Court applies the same standard as when
addressing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). See Lagerstrom v. Kingston, 463
F.3d 621, 624 (7th Cir. 2006). To survive dismissal, the
“complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Pro se
complaints such as that filed by Mr. Price are construed
liberally and held “to a less stringent standard than
formal pleadings drafted by lawyers.” Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (internal
following are the factual allegations in the Complaint, which
the court must accept as true at this time:
October 10, 2018, Mr. Price went to the Indy Trading Post
(the “Store”) on his girlfriend's
behalf to look at ammunition and ask questions about
ammunition for her. [Filing No. 1 at 6.] At the
time, Mr. Price was on parole and was prohibited by law from
purchasing ammunition. [Filing No. 1 at 6.] The
Store asked for Mr. Price's identification, as if a
background check was necessary for the purchase of
ammunition. [Filing No. 1 at 6.] The Store conducted
the background check solely based on “racial
profiling.” [Filing No. 1 at 6]. A background
check was not necessary because Mr. Price did not indicate he
was interested in purchasing anything and because background
checks are not required for the purchase of ammunition in
Indiana. [Filing No. 1 at 6.] The Store
confirmed-through an online public records search and through
communications with Special Agent Brian Clancy of the Bureau
of Alcohol, Tobacco, Firearms and Explosives (the
“ATF”)-that Mr. Price had prior
convictions and was “ineligible” for purchasing
ammunition. [Filing No. 1 at 6.] Although the Store
knew of Mr. Price's convictions, the Store did not advise
Mr. Price that he was ineligible to purchase ammunition due
to his prior convictions. [Filing No. 1 at 6.]
Instead, the Store discriminated against Mr. Price and
“targeted [him] for a crime because [he] was a black
malefactor.” [Filing No. 1 at 6.] The Store
induced Mr. Price to place an order for ammunition, using a
tactic called “mirroring, ” and by providing
him with discounts and incentives and then refusing to return
Mr. Price's money. [Filing No. 1 at 2.]
Mr. Price would not have attempted to purchase the ammunition
if he was “left alone” and not influenced by the
Store. [Filing No. 1 at 3.] The Store placed an
order for the ammunition for Mr. Price and told him that it
would call him once the order was ready to be picked up.
[Filing No. 1 at 6.]
several occasions between October 12 and October 16, 2018,
Mr. Price contacted the Store and attempted to rescind his
purchase of the ammunition. [Filing No. 1 at 7.]
However, the Store refused to provide Mr. Price with a full
refund and further encouraged him to continue with the
purchase by providing additional incentives including
discounts on other items and free shooting range time for Mr.
Price and his companion. [Filing No. 1 at 7.] Mr.
Price reiterated to the Store that he had no intention of
completing the transaction initiated on October 10, 2018 and
that he wanted a cash refund. [Filing No. 1 at 7.]
October 16, 2018, the Store contacted Mr. Price to advise him
that the purchased ammunition was ready to be picked up.
[Filing No. 1 at 8.] Mr. Price and his girlfriend
went to the store to pick up the order and to purchase
additional ammunition. [Filing No. 1 at 8.] Mr.
Price's girlfriend did not have money with her and she
asked Mr. Price to pay for the ammunition for her, which he
did. [Filing No. 1 at 8.] The following day, Mr.
Price contacted the Store and advised it that he would be
returning the ammunition he purchased on his first visit
because it was “an unnecessary purchase.”
[Filing No. 1 at 9.] The Store notified ATF Special
Agent Clancy of Mr. Price's phone call and advised him
that Mr. Price would be returning to the store that day.
[Filing No. 1 at 9.] When Mr. Price returned to the
store, Special Agent Clancy was “acting in an
un[der]cover capacity” and he and someone who worked
for the Store “literally placed a gun in [Mr.
Price's] hand, which constitutes a clear violation of the
Federal Firearms Laws set forth.” [Filing No. 1 at
9.] Mr. Price was only at the store that day to get a
cash refund, and the “[ATF] along with [the Store] used
that opportunity to apprehend [him] for a crime in which [the
Store] originally manufactured.” [Filing No. 1 at
November 2018, Mr. Price was indicted in the U.S. District
Court for the Southern District of Indiana for being a
prohibited person in possession of ammunition. [Filing
No. 1 at 2]; United States v. Price, No.
1:18-cr-348-JMS-MPB (S.D. Ind. filed Oct. 18, 2018). The
Criminal Complaint which initiated Mr. Price's criminal
matter (preceding the formal Indictment, which serves as the
operative charging document at this time) alleges facts that
largely tracks his allegations in this case: Mr. Price
ordered ammunition at the Store; Store employees asked for
Mr. Price's identification; and Store employees contacted
law enforcement when they found that Mr. Price had a prior
felony conviction. Criminal Complaint, United States v.
Price, No. 1:18-cr-348-JMS-MPB (S.D. Ind. Oct. 18,
2018), ECF No. 2 at 3. On October 16, 2018, Mr. Price
returned to the Store to purchase the ammunition and the next
day he was arrested when he returned to the Store.
Id. at 3-4.
Price initiated this civil lawsuit on March 28, 2019.
[Filing No. 1.] Mr. Price asserts several claims
against the Store, alleging that the Store conspired with the
ATF to: (1) entrap him into committing the crime; (2)
discriminate against him based on his race; and (3) deprive
him of his civil rights. Mr. Price asserts that he suffered
the following damages due to “the [Store's]
negligence and unlawful acts”: “emotional
distress, pain and suffering, wrongful incarceration, loss of
wages, loss of schooling, loss of barber equipment, loss of
barber clientel[e], loss of precious and essential time away
from [his] spouse and children, damaged reputation, student
loan debt, accumulation of bills, and loss of vehicle,
clothes, [and] housing.” [Filing No. 1 at 10.]
Mr. Price seeks the following relief: damages in the amount
of $500, 000 plus interest and costs, revocation of the
Store's federal firearms license, liquidation of the
Store's inventory, closure of the Store's business
located at 2851 Madison Ave., Indianapolis, IN 46225, and
imprisonment and/or fines imposed on the Store
(“indictment charging [the Store] with the sale of
ammunition to a prohibited person”). [Filing No. 1