Schuller v Nicor Gas Co.

Filing 6

MEMORANDUM Opinion and Order, Civil case terminated. Signed by the Honorable John Robert Blakey on 5/15/2015. Mailed notice(gel, ) (Main Document 6 replaced on 5/15/2015) (gel, ).

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL SCHULLER,
Plaintiff,
v.
NICOR GAS CO.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 15 C 3375
Judge John Robert Blakey

MEMORANDUM OPINION AND ORDER
Plaintiff, appearing pro se, submitted to the Court a complaint for violation of
constitutional rights [1]. He also filed an application for leave to proceed in forma
pauperis [4].

The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed

to ensure indigent litigants meaningful access to the federal courts while
simultaneously preventing indigent litigants from filing frivolous, malicious, or
repetitive lawsuits. Neitzke v. Williams, 490 U.S. 319, 324 (1989).

Before

authorizing a litigant to proceed in forma pauperis, the Court must make two
determinations: first, the Court must determine that the litigant is unable to pay
the $400 filing fee; and, second, the Court must determine that the action is neither
frivolous nor malicious, does not fail to state a claim, and does not seek money
damages against a defendant immune from such relief. 28 U.S.C. § 1915(a), (e). The
first determination is made through a review of the litigant’s assets as stated in an
affidavit submitted to the Court. The second is made by looking to the plaintiff’s
allegations.

Plaintiff clears the first hurdle: his application makes clear that he cannot
afford to pay the filing fee. He has some savings and owns his home, but the home
is in foreclosure and he has been unemployed since 2009. Plaintiff cannot clear the
second hurdle, however.
Plaintiff's complaint is a form complaint for violation of constitutional rights
pursuant to 42 U.S.C. §§ 1983 and 1985. He alleges that, on April 6, 2015 at about
8:00 a.m., the defendant conspired together to violate one or more of his civil rights
by refusing “to accept my promissory note as payment for service rendered and
subsequently shut off my gas service.” Complaint [1], ¶¶6-7.
Dismissal for failure to state a claim is appropriate when the facts as pleaded
do not state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Here, that is the case. Although plaintiff does not identify the
specific statutes upon which he seeks to rely, it is clear that he cannot proceed
under any of the statutes he has attempted to invoke (42 U.S.C. §§ 1983, 1985 and
1986).
Section 1983 creates no substantive rights; it merely provides a remedy for
deprivations of federal statutory and constitutional rights. As such, to state a claim
for relief under § 1983, plaintiff must allege: (1) that he was deprived of a right
secured by the Constitution or laws of the United States; and (2) that the
deprivation was visited upon him by a person acting under color of state law. E.g.,
Gomez v. Toledo, 446 U.S. 635, 640 (1980).

Although the Court is obligated to

construe pro se pleadings liberally, e.g., Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.

2006), plaintiff’s allegations do not give rise to a federal cause of action. First,
plaintiff’s allegations do not obviously implicate any constitutional or civil right. A
promissory note, presented in the context alleged in the complaint, is more of an
“I.O.U.”; it is merely an acknowledgement of a debt and a promise to pay at some
unspecified future time. A privately-held company’s failure to accept this as a form
of payment for services rendered would not appear to violate any federal right or
statute.

Plaintiff also fails to allege state action and does not allege that the

unidentified individual with whom defendant allegedly conspired was at any time
acting under color of state law. His allegations fail to state a claim under § 1983.
The only subsection of § 1985 that could conceivably apply is § 1985(3). That
section requires a plaintiff to allege, among other things, that defendant intended to
harm him out of racial or other class-based discriminatory animus. General Bldg.
Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 390 n.17 (1982); Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). Plaintiff makes no claim that defendant
intentionally harmed him for reasons of racial or class-based hostility.

Finally,

because the complaint fails to state a § 1985(3) claim, it necessarily fails to state a
claim under § 1986. E.g., Grimes v. Smith, 776 F.2d 1359, 1363 n.4 (7th Cir. 1985).
Accordingly, plaintiff’s application for leave to proceed in forma pauperis is
denied, and his complaint is dismissed.
Date: May 15, 2015

ENTERED:
___________________________________
John Robert Blakey
United States District Judge