Gatto v. Indian Praire School

Filing 5

WRITTEN Opinion entered by the Honorable James F. Holderman on 4/13/2012: For the reasons listed in the Statement section of the order, Plaintiff Denise Gatto's motion for leave to file in forma pauperis 3 , and Gatto's motion for appoint ment of counsel 4 are denied. If Gatto desires to proceed with this case, Gatto must pay the $350 filing fee by May 14, 2012. Failure to comply with this order will result in dismissal of this case. Signed by the Honorable James F. Holderman on 4/13/2012: Mailed notice (am)

3Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

James F. Holderman

CASE NUMBER

12 C 2497

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

4/13/2012

Denise Gatto vs. Indian Prairie School District 204

DOCKET ENTRY TEXT

For the reasons listed in the Statement section of the order, Plaintiff Denise Gatto’s motion for leave to file in
forma pauperis (Dkt. No. 3), and Gatto’s motion for appointment of counsel (Dkt. No. 4) are denied. If
Gatto desires to proceed with this case, Gatto must pay the $350 filing fee by May 14, 2012. Failure to
comply with this order will result in dismissal of this case.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Requests to proceed in forma pauperis (“IFP”) are reviewed under 28 U.S.C. § 1915. To ensure that
indigent litigants have meaningful access to the courts, § 1915 allows an indigent litigant to commence an action
or appeal in federal court without paying the administrative costs of the lawsuit. Denton v. Hernandez, 504 U.S.
25, 27 (1992); Neitzke v. Williams, 490 U.S. 319, 324 (1989). However, the court must deny a request to proceed
IFP if (1) the allegation of poverty is untrue; (2) the action is frivolous; (3) the action fails to state a claim; or (4)
the action seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2).
The events underlying Gatto’s complaint (Dkt. No. 1) are substantially similar to those alleged in Denise
Gatto v. Indian Prairie School District 204, No. 11 C 6405 (N.D. Ill.) (Holderman, C.J.). In that case, Gatto
raised a Title VII claim, a breach of contract claim, and a defamation claim, alleging that Indian Prairie School
District 204 (“204”) discriminated against her when it failed to promote her from her student teaching job and
disseminated negative references to potential employers, thus preventing her from obtaining other employment.
This court found that Gatto’s allegations in that case failed to state a claim for relief and granted a motion to
dismiss on March 26, 2012. Id.
In this case, Gatto raises another claim of discrimination for the same underlying events, this time under
42 U.S.C. § 1983. (Dkt. No. 1.) Instead of raising the claim against the school district, she is now suing the
superintendent, the assistant superintendent, and the principal of a school where she worked. (Although the
caption of the case indicates that Gatto is suing 204, her complaint actually raises claims against the other
individuals.)
To make out a claim for discrimination under §1983, Gatto must allege that “1)[s]he is a member of a
protected class; 2) [s]he was similarly situated to individuals not of the protected class; 3) [s]he was treated
differently than those similarly-situated individuals; and 4) those who treated h[er] differently acted with
12C2497 Denise Gatto vs. Indian Prairie School District 204

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STATEMENT
discriminatory intent.” Swearingen-El v. Cook Cnty. Sheriff’s Dep’t, 416 F. Supp. 2d 612, 617 (N.D. Ill. 2006)
(citing Johnson v. City of Fort Wayne, 91 F.3d 922, 944 (7th Cir. 1996)). Here, presuming that Gatto is a member
of a protected class because she is a woman, Gatto has not alleged that she was similarly situated to men who
were hired as teachers or given positive references. Moreover, she has alleged no evidence of discriminatory
intent. Accordingly, Gatto has failed to state a § 1983 claim.
Gatto’s complaint also appears to be frivolous because it relates to the same events that have already been
litigated in Case No. 11 C 6405. In particular, it appears that 204’s alleged discriminatory failure to give Gatto
a job occurred in 2006 (Gatto does not include any dates in her complaint in this action, but alleged in Case No.
11 C 6405 that the events occurred in 2006. See Am. Compl. 5-6, Denise Gatto v. Indian Prairie School District
204, No. 11 C 6405 (Sept. 22, 2012 N.D. Ill.)) Assuming that to be the case, Gatto’s action is untimely. See
Wallace v. Kato, 549 U.S. 384, 387 (2007) (the statute of limitations for a § 1983 claim is the statute of
limitations for personal-injury torts in the state in which the cause of action arose); Farrell v. McDonough, 966
F.2d 279, 281 (7th Cir. 1992) (same); see also 735 Ill. Comp. Stat. 5/13-202 (personal-injury torts statute of
limitations is two years in Illinois). The court thus finds Gatto’s complaint to be frivolous, and her motion to
proceed IFP is denied.
Federal courts are also authorized to “request an attorney to represent any person unable to afford
counsel,” 28 U.S.C. § 1915(e)(1), but only “in proceedings in forma pauperis,” Pruitt v. Mote, 503 F.3d 647, 649
(7th Cir. 2007) (en banc). Because the court is denying Gatto’s motion to proceed IFP, she is not eligible for the
appointment of counsel.

12C2497 Denise Gatto vs. Indian Prairie School District 204

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