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Price v. Indy Trading Post

United States District Court, S.D. Indiana, Indianapolis Division

May 7, 2019

MARK A. PRICE, JR., Plaintiff,



         Pending 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.

         I. Motion to Proceed In Forma Pauperis

         28 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, [2], meets this standard, and is therefore GRANTED. 28 U.S.C. § 1915(a).

         The 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 remains owing.

         II. Screening

         A. Screening Standard

         Pursuant 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 quotation omitted).

         B. Background

         The following are the factual allegations in the Complaint, which the court must accept as true at this time:

         On 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, ”[1] 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.]

         On 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.]

         On 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 9.]

         In 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.

         Mr. 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 at 4.]

         C. ...

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