United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Norman also known as Lasandra Norman, a Plaintiff proceeding
without counsel, filed a Complaint [ECF No. 1] against
Defendants NIPSCO and American Water. She also filed a Motion
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 Plaintiff is GRANTED additional
time to amend her Complaint, accompanied either by the
statutory filing fee or another Motion to Proceed In Forma
Pauperis. If Plaintiff fails to amend her Complaint within
the time allowed, the Clerk of Court will be directed to
close this case without further notice to 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 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, 324 (1989)
(“The federal in forma pauperis statute,
enacted in 1892 and presently codified as 28 U.S.C. §
1915, is designed to ensure that indigent litigants have
meaningful access to the federal courts.”). To
authorize a litigant to proceed in forma pauperis, a court
must make two determinations: first, whether the litigant is
unable to pay the costs of commencing the action, 28 U.S.C.
§ 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, id. §
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 she is unable to prepay the filing fee.
inquiry does not end there, however. In assessing whether a
plaintiff may proceed in forma pauperis, 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 § 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 §
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
state a claim under the federal notice pleading standard, 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). The complaint must
“contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In reviewing the complaint, a court
accepts all well-pleaded facts as true and draws all
reasonable inferences in favor of the non-moving party.
Tobey v. Chibucos, 890 F.3d 634, 645 (7th Cir.
Complaint, Plaintiff alleges that she is bringing a class
action. Plaintiff then alleges that she is a “forced
stakeholder/customer” in the utilities NIPSCO and
American Water because they bill her monthly and she has been
paying her bill on time for more than ten years. She alleges
that these bills cause stress. Plaintiff alleges that, if she
and others, mainly in Gary, Indiana, are unable to pay their
utility bills, Defendants send “threatening letters
with specific date and times on when they will violate my
privacy rights by turning my utilities off from the
streets.” Compl. 2. And, Plaintiff alleges that the
utility “bills can start to go up very fast.”
Id. She further alleges that Defendants have not
fixed up neighborhoods. Plaintiff states that she would
prefer to pay the government for her utilities. Plaintiff
asks that all disconnections scheduled for NIPSCO and
American Water be suspended and that all billing be suspended
as well. Plaintiff further seeks, on behalf of all residents,
a “full refund” for all money paid on NIPSCO and
American Water accounts because the bills were for basic
essentials of life. Id. Finally, Plaintiff alleges
that American Water has “illegally” turned down
the water pressure in her house “because of a $60.00
bill.” Compl. p. 3.
appears that Plaintiff is bringing a claim under 42 U.S.C.
§ 1983 for a violation of constitutional rights.
“In order to state a claim under § 1983 a
plaintiff must allege: (1) that defendants deprived [her] of
a federal constitutional right; and (2) that the defendants
acted under color of state law.” Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Defendants in
this case, NIPSCO and American Water, are private companies,
and Plaintiff has not alleged any facts that these private
companies were acting under color of state law or in concert
with a state actor. See Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 822 (7th Cir. 2009) (“When a
plaintiff brings a section 1983 claim against a defendant who
is not a government official or employee, the plaintiff must
show that the private entity acted under color of state
law.”); Johnson v. Dossey, 515 F.3d 778, 782
(7th Cir. 2008) (recognizing that a private actor may be held
liable under § 1983 if that private actor conspired with
a state actor to violate the plaintiff's civil or
constitutional rights). Nor are the Defendants state actors
merely because they are highly regulated by state law.
See Manhattan Cmty. Access Corp. v. Halleck, 139
S.Ct. 1921, 1926, 1932 (2019) (recognizing that, under the
state-action doctrine, “a private entity may be
considered a state actor when it exercises a function
‘traditionally exclusively reserved to the
State'” but also recognizing that “the
‘fact that a business is subject to state regulation
does not by itself convert its action into that of the
State'” (quoting Jackson v. Metro. Edison
Co., 419 U.S. 345, 352, 350 (1974))); Rendell-Baker
v. Kohn, 457 U.S. 830, 841 (1982) (same). Because
Plaintiff has not shown that Defendants were acting under
color of state law, Plaintiff cannot state a claim for a
§ 1983 violation, and the Court dismisses
Plaintiff's § 1983 claims.
the pro se Complaint liberally, Plaintiff may also be
bringing state law claims. To the extent that Plaintiff is
challenging the disconnection of her utility services, the
procedure for a public utility customer to resolve such a
dispute with the public utility is governed by Indiana
regulations. See 170 Ind. Admin. Code 4-1-16,
6-1-16. The procedure for appealing the resolution of such a
dispute with the utility is also governed by Indiana
regulations, which allow the customer to file an informal
complaint with consumer affairs, the consumer to request a
subsequent review by the director of consumer affairs, and
consumer affairs to refer a complaint to the Indiana Utility
Regulatory Commission (IURC). See 170 Ind. Admin.
Code 16-1-5; 170 Ind. Admin. Code 6-1-16(c) (addressing
disconnection of water utility services (citing 170 Ind.
Admin. Code 16-1-5)); 170 Ind. Admin. Code 4-1-16(c)
(addressing disconnection of electric utility services
(citing 170 Ind. Admin. Code 16-1-5)). Review of IURC
decisions is made by appeal to the Indiana Court of Appeals.
See Ind. Code § 8-1-3-1.
extent that Plaintiff is contesting the rates charged by
Defendants, utility rates are regulated by the IURC, and,
again, review of the IURC's orders takes place in the
Indiana Court of Appeals. See NIPSCO Indus. Grp. v. N.
Ind. Pub. Serv. Co., 125 N.E.3d 617, 619-20, 623, 623 n.
9 (Ind. 2019) (providing a basic explanation of how utility
rates are set in Indiana (citing NIPSCO Indus. Grp. v. N.
Ind. Pub. Serv. Co., 100 N.E.3d 234, 238-39 (Ind. 2018);
Ind. Code § 8-1-3-1; Hamilton Se. Utils., Inc. v.
Ind. Util. Regulatory Comm'n, 101 N.E.3d 229, 232
(Ind. 2018))); see also Ind. Code § 8-1-2-54
(empowering the IURC to investigate a complaint made against
a public utility); Ind. Code § 8-1-3-1 (providing that
an appeal from an IURC decision is made to the Indiana Court
of Appeals); Ind. Code § 8-1-3-7 (governing judicial
determination of appeals of IURC decisions, remand of
proceedings, and injunctions); Bridges v. Veolia Water
Indianapolis, LLC, 978 N.E.2d 447, 453-54 (Ind.Ct.App.
2012) (explaining that, because the IURC has exclusive
jurisdiction over an attack on the validity or application of
a utility's approved rate, courts do not have
jurisdiction until administrative remedies have been
exhausted); N. Ind. Pub. Serv. Co. v. Dozier, 674
N.E.2d 977, 983-86 (Ind.Ct.App. 1996) (discussing the
IURC's exclusive jurisdiction to determine certain
may also be attempting to bring an Indiana common law breach
of contract claim or a statutory negligence per se claim for
a violation of Indiana law regarding the regulation of public
utilities. See, e.g., Simstad v. Scheub,
Cause No. 2:07-CV-407, 2010 WL 3894017, at *21 (N.D. Ind.
Sept. 30, 2010) (acknowledging that Indiana courts recognize
negligence actions for statutory violations and considering
whether the plaintiff had stated a claim for negligence per
se against NIPSCO (quoting Kho v. Pennington, 875
N.E.2d 208, 212 (Ind. 2007))). The Court's original
subject matter jurisdiction over any state law claims must be
premised on diversity jurisdiction under 28 U.S.C. §
1332. Diversity jurisdiction exists when the parties to an
action on each side are citizens of different states, with no
defendant a citizen of the same state as any plaintiff, and
the amount in controversy exceeds $75, 000. See Id.
§ 1332(a)(1). It is not clear from the allegations of
the Complaint whether Plaintiff and Defendants are of diverse
citizenship. Regardless, the amount in controversy
requirement of $75, 000 is not met. Plaintiff alleges that
American Water turned down the water pressure in response to
an unpaid water bill in the amount of $60. It also appears
that Plaintiff's combined utility bills for a ten-year
period would not reach the minimum amount in controversy.
Because the amount in controversy is not met, the Court lacks
original subject matter jurisdiction under 28 U.S.C. §
1332 over any state law claims against Defendants.
the Court has supplemental jurisdiction over state law claims
under 28 U.S.C. § 1367 based on the Court's original
jurisdiction to hear the federal constitutional claims.
However, because the Court is dismissing the federal claims
for failure to state a claim, the Court declines to exercise
its supplemental jurisdiction over the state law claims.
See 28 U.S.C. § 1367(c)(3).
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 Plaintiff
until December 8, 2019, to file an amended complaint. See
Luevano, 722 F.3d at 1022 (stating that a litigant
proceeding under the in forma pauperis statute has the same
right to amend a complaint as fee-paying plaintiffs have).
Any amended complaint must cure the deficiencies identified
in this Opinion. Along with an amended complaint, Plaintiff
must also file a new Motion to Proceed In Forma Pauperis. If
Plaintiff does not file an amended complaint by December 8,
2019, the Court will direct the Clerk of Court to close this
case. If Plaintiff does not file an amended complaint and the
case is closed, Plaintiff is permitted to pursue her claims
in state court because the Court has declined to exercise
jurisdiction over the state law claims under 28 U.S.C. §
1367(c)(3). See Doe-2 v. McLean Cnty. Unit Dist. No. 5