Burnett v. BAC Home Loan Servicing L.P. et al

Filing 8

MEMORANDUM AND ORDER,Plaintiff's Motion (Doc. 2 ) for Leave to proceed in forma pauperis and Motion (Doc. 3 ) for Service of Process at Government Expense are DENIED and this matter is DISMISSED with prejudice. The Plaintiff is WARNED that continuing to file frivolous claimsmay result in sanctions. The Clerk of Court is DIRECTED to close this matter. Signed by Judge J. Phil Gilbert on 3/13/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MELISSA L. BURNETT,
Plaintiff,
v.

Case No. 17-cv-00235-JPG-RJD

BAC HOME LOAN
SERVICING, L.P., et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion (Doc. 2) for Leave to proceed
in forma pauperis and Motion (Doc. 3) for Service of Process at Government Expense.
A federal court may permit an indigent party to proceed without pre-payment of fees.
28 U.S.C. § 1915(a)(1). Nevertheless, a court can deny a qualified plaintiff leave to file in forma
pauperis or can dismiss a case if the action is clearly frivolous or malicious or fails to state a
claim. 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). The test for determining if an action is frivolous or
without merit is whether the plaintiff can make a rational argument on the law or facts in support
of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241,
1247 (7th Cir. 1983).
An action fails to state a claim if it does not plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When
assessing a petition to proceed in forma pauperis, a district court should inquire into the merits of
the petitioner’s claims, and if the court finds them to be frivolous, it should deny leave to
proceed in forma pauperis. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982).

The Court is satisfied from Plaintiff’s affidavit that she is indigent. However, plaintiff’s
complaint in this matter mirrors the complaint she filed in Burnett v. Bank of America, et al.,16cv-01257-JPG-RJD. In the previous matter, plaintiff was informed that her cause of action was
filed beyond a reasonable time for filing and a motion under Rule 60 is a motion for relief from a
judgment or order in which this Court has jurisdiction.

The plaintiff has not identified a

judgment entered by this Court where this Court would have jurisdiction nor has she provided
reasonable circumstances for a delay in filing.
The Court is not going to repeat the many problems with plaintiff’s pleading as the Court
addressed them in the previous case. Those defects remain in plaintiff’s current complaint. As
such, plaintiff fails to state a claim to relief that is plausible on its face.
Therefore, Plaintiff’s Motion (Doc. 2) for Leave to proceed in forma pauperis and
Motion (Doc. 3) for Service of Process at Government Expense are DENIED and this matter is
DISMISSED with prejudice. The Plaintiff is WARNED that continuing to file frivolous claims
may result in sanctions. The Clerk of Court is DIRECTED to close this matter.
IT IS SO ORDERED.
DATED: 3/13/2017
s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE