Phillips v. Redkey Town Board

Filing 11

OPINION AND ORDER: GRANTING 5 First MOTION to Dismiss for Lack of Jurisdiction by Defendant Redkey Town Board; this case is DISMISSED WITHOUT PREJUDICE. Plaintiff Phillips is directed to file any Amended Complaint on or before 9/15/2017. Defendant Town of Redkey is INSTRUCTED, as outlined in Order; the Clerk of the Court is instructed to bring any Amended Complaint Phillips files to the Court's immediate attention after it is received and docketed; and the Court interprets Phillips' request for a hearing (ECF 8 ) and request for default judgment (ECF 9 ) as motions and both are DENIED AS MOOT. Signed by Judge William C Lee on 8/15/2017. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JAMES L. PHILLIPS,

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Plaintiff,
v.
REDKEY TOWN BOARD,
Defendant.

Case No. 1:17-CV-224

OPINION AND ORDER
This matter is before the Court on the motion to dismiss filed by Defendant Redkey Town
Board on June 12, 2017 (ECF 5). In response to the motion, Plaintiff James L. Phillips sent a
letter to the Court requesting a hearing (ECF 8, docketed on June 15, 2017), filed a document
requesting a Clerk’s entry of default against Redkey (ECF 9, docketed on June 15, 2017), and
filed a “supplement” to his Complaint (ECF 10, docketed on June 28, 2017). Redkey did not file
a reply brief (which was due July 10) and so this matter is ripe for resolution. For the reasons
explained below, the Court rules as follows:
1) The motion to dismiss (ECF 5) is GRANTED and this case is DISMISSED WITHOUT
PREJUDICE;
2) Plaintiff James Phillips will be afforded an opportunity to file an Amended Complaint so he
can provide more factual detail to explain and support his claim. Phillips is directed to file any
Amended Complaint on or before September 15, 2017. If Phillips fails to file an Amended
Complaint or chooses not to do so, this case will be dismissed without further notice or hearing;
3) Defendant Town of Redkey is INSTRUCTED NOT TO FILE AN ANSWER OR OTHER
RESPONSIVE PLEADING TO ANY PROPOSED AMENDED COMPLAINT UNTIL

DIRECTED BY THE COURT TO DO SO;
4) The Clerk of the Court is instructed to bring any Amended Complaint Phillips files to the
Court’s attention when it is received and docketed; and
5) The Court interprets Phillips’ request for a hearing (ECF 8) and request for default judgment
(ECF 9) as motions and both are DENIED AS MOOT.
STANDARD OF REVIEW
Phillips is proceeding pro se. A trial court must liberally construe a pro se plaintiff’s
pleadings. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Hart v. Amazon.com, Inc., 191
F.Supp.3d 809, 816 (N.D. Ill. 2016), aff’d, 845 F.3d 802 (7th Cir. 2017) (“Because Plaintiff is
proceeding pro se, the Court construes his complaint ‘liberally’ and holds it to a ‘less stringent
standard than formal pleadings drafted by lawyers.’”) (quoting Perez v. Fenoglio, 792 F.3d 768,
776 (7th Cir. 2015)).
Redkey’s motion to dismiss is brought pursuant to Fed.R.Civ.P. 12(b)(1). A Rule
12(b)(1) motion challenges jurisdiction in federal court, and the plaintiff bears the burden of
establishing the elements necessary for jurisdiction. Scanlan v. Eisenberg, 669 F.3d 838, 841-42
(7th Cir. 2012). When ruling on a 12(b)(1) motion, a court may look beyond the complaint’s
allegations and consider any evidence that has been submitted on the issue of jurisdiction. Ezekiel
v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). In this case, Redkey argues that Phillips’ Complaint
should be dismissed pursuant to Rule 12(b)(1) because it fails to establish either diversity
jurisdiction or federal question jurisdiction.

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Phillips’ Complaint states, in its entirety, as follows: “The Redkey Town Board took my
land across Railroad St. They are tearing up my apple trees and stealing my land on other side of
street.” Id., p. 2. It doesn’t take much in the way of interpretation or inference to grasp that
Phillips is accusing the Town of Redkey of illegally seizing his private property, or part of it at
least, and he is seeking some sort of remedy for that alleged conduct. Such a claim can be
brought pursuant to the “takings” clause of the Fifth Amendment, or perhaps as a procedural due
process claim, which in turn would invoke this Court’s federal question jurisdiction. But
Phillips’ two-sentence Complaint doesn’t mention the Fifth Amendment or due process (or any
other federal law or right) and subject matter jurisdiction cannot simply be assumed, which
means the Defendant’s motion to dismiss under Rule 12(b)(1) is well taken.
But if the Court’s inference is reasonable and Phillips is bringing this lawsuit on a theory
that Redkey violated his rights under federal law by seizing part of his land–whether in violation
his Fifth Amendment rights, his procedural due process rights, or some other right–thereby
bestowing federal question jurisdiction on this Court, then the sufficiency of that claim would be
challenged under Fed.R.Civ.P. 12(b)(6) rather than Rule 12(b)(1). Redkey does not invoke Rule
12(b)(6) in its motion to dismiss, even as an alternative argument, instead relying solely on Rule
12(b)(1) as the basis for the motion. Redkey is correct about one thing: the threshold issue at this
point (or at any point in the life of a case) is whether this Court has jurisdiction to hear the
Plaintiff’s claim. Redkey says no, and so the case should be dismissed (with prejudice). But even
though Redkey chose not to present an argument under Rule 12(b)(6), the Court can review
Phillips’ Complaint under that subsection sua sponte, which affords an opportunity to examine
more closely any claim he is attempting to assert and then to determine whether it is one over
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which this Court has jurisdiction. If not, dismissal under Rule 12(b)(6) for failure to state a claim
would also be warranted. A sua sponte “dismissal pursuant to Rule 12(b)(6) is permitted,
‘provided that a sufficient basis for the court’s action is evident from the plaintiff’s pleading.’”
Ruiz v. Kinsella, 770 F.Supp.2d 936, 945 (N.D.Ill. 2011) (quoting Ledford v. Sullivan, 105 F.3d
354, 356 (7th Cir.1997)); see also, Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003)1
(“District judges have ample authority to dismiss frivolous or transparently defective suits
spontaneously, and thus save everyone time and legal expense. This is so even when the plaintiff
has paid all fees for filing and service[.]”) (citing Rowe v. Shake, 196 F.3d 778, 783 (7th
Cir.1999)).
While a Rule 12(b)(1) motion raises a direct challenge to a district court’s subject matter
jurisdiction, a Rule 12(b)(6) motion, in contrast, “tests whether the complaint states a claim on
which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). The
complaint must contain factual allegations that plausibly suggest a right to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009). When analyzing a motion under either Rule 12(b)(1) or Rule
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In Hoskins, the pro se plaintiff filed a lawsuit alleging that “employees of Milwaukee
entered his land, demolished his dog house, and ripped up his flower bed.” Hoskins, 320 F.3d at
363. The district court dismissed the case for failure to state a claim but the Seventh Circuit
reversed. The appellate court wrote that the “complaint should not have been dismissed. The
fundamental allegations–unreasonable searches and seizures, denial of notice and an opportunity
to be heard, and an attempt to take property for private use–rely on established legal theories[.]”
Id. However, in Hoskins the Seventh Circuit noted that “The complaint is well written, and
Hoskins’s grievance is easy to understand. At about 2 ½ single-spaced pages, it meets the
description of Fed.R.Civ.P. 8. The legal theories are well established; Hoskins is entitled to relief
if he can prove what he alleges, so the complaint survives a test under Fed.R.Civ.P. 12(b)(6).” Id.
Phillips’ Complaint, on the other hand, provides virtually no facts to explain his claim; it consists
instead of his conclusory allegation that Redkey “stole” his land, which is insufficient to state a
claim (or indicate federal jurisdiction). Phillips should be given an opportunity to file an
Amended Complaint that adds factual information about his claim. Like the plaintiff in Hoskins,
Phillips “may be unable to prove [his claim], but he is entitled to try.” Id. at 765.
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12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all
reasonable inferences in favor of the plaintiff. Scanlan, 669 F.3d at 841. And while pro se
plaintiffs are afforded a wider canvas on which to present their claims, the court need not accept
a plaintiff’s legal conclusions or conclusory allegations, which are insufficient to defeat a motion
to dismiss. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
DISCUSSION
James Phillips resides in the town of Redkey (which is in Jay County, Indiana).
Complaint (ECF 1). As noted above, his Complaint consists of two sentences and reads: “The
Redkey Town Board took my land across Railroad St. They are tearing up my apple trees and
stealing my land on other side of street.” Id., p. 2. Phillips does not request any relief in his
Complaint, but in his request for default judgment he writes that “[t]his is my Default Judgement
Claim for the Town Board members of Redkey who [failed] to answer my Complaint. I want
$1000 dollars plus travel pay six cents a mile that’s what I got when I was in the Navy.” Request
for Default Judgment (ECF 9), p. 1.
Redkey did file a timely Answer to Phillips’ Complaint (see ECF 3), so his assertion that
he is entitled to a default judgment is unfounded. Redkey also filed the present motion to dismiss
at the same time, arguing that the case should be dismissed for lack of jurisdiction. Defendants’
Memorandum in Support of Motion to Dismiss (ECF 6), p. 3. Redkey contends that “Plaintiff
has failed to indicate in his Complaint that diversity of citizenship between himself, a private
citizen, and Defendant, an Indiana resident, exists and, thus, this Court has no subject matter
jurisdiction over this matter.” Id. The town also contends that “the [P]laintiff’s Complaint fails to
allege any federal right or law that Defendant is alleged to have violated.” Id. Based on these
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contentions (which are correct), Redkey argues as follows:
This Court must presume that it lacks subject matter jurisdiction as to the issues
addressed in the Complaint. . . . [T]he plaintiff’s complaint completely fails to set
out any information in his Complaint that would indicate that this Court would
have subject matter jurisdiction over the allegations contained in the Complaint.
Because Plaintiff has failed to meet his burden, Defendant respectfully requests
that this matter be dismissed with prejudice for lack of subject matter
[jurisdiction] pursuant to Federal Rule of Civil Procedure 12(b)(1).
Id., p. 4 (italics added).2 The Court agrees that this case must be dismissed, although dismissal
will be without prejudice for the reasons discussed below. The Court could dismiss Phillips’
Complaint based solely on Redkey’s Rule 12(b)(1) jurisdictional argument, and enter a very short
order doing so, but that would prejudice Phillips by depriving him of at least some amount of
explanation and guidance to help him decide whether to file an Amended Complaint. Assessing
his Complaint under the pleading sufficiency standards of Rule 12(b)(6) and Rule 8, on the other
hand, helps better explain why the original Complaint is being dismissed and why it is deficient
in its present form.

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The Complaint reveals on its face that there is no diversity of citizenship between the
parties in this case, given that a professed Indiana resident is suing an Indiana town (i.e., a state
municipal entity or political subdivision). But the Court concludes that any claim Phillips is
attempting to assert is likely based on federal question jurisdiction rather than diversity
jurisdiction, even though the precise nature of that federal question is elusive. So, while Redkey
is correct that diversity jurisdiction does not exist, that argument does not support dismissal of
Phillips’ Complaint since it is more reasonable to infer that Phillips is basing jurisdiction on
some federal law (such as the Fifth Amendment or federal due process, for example) and failed
to articulate that. At the end of the day, though, Phillips’ present Complaint is silent on the
threshold issue of jurisdiction and so Redkey’s motion to dismiss under Rule 12(b)(1) will be
granted. But Phillips’ pro se status mandates that the Court, in the interest of justice, permit him
to file an Amended Complaint that explains in more detail the facts be believes support his claim
that Redkey illegally seized and/or damaged his property, which in turn may cure the admittedly
serious deficiencies in the present Complaint by clarifying Phillips’ cause of action and its
federal jurisdictional foundation.
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Phillips’ Complaint is sparse on factual details, to put it mildly. Still, it is clear that
Phillips is accusing the town of Redkey of seizing and damaging his land. The Court’s
identification of a possible “taking” claim, however, is based not on a liberal interpretation of
Phillips’ Complaint, but on mere speculation that he might intend such a claim. The fact that the
Court is forced to speculate as to the nature of Phillips’ claim or claims demonstrates the
insufficiency of his Complaint since the failure “to raise a right to relief above the speculative
level[]” is the very definition of insufficient pleading. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
The documents that Phillips filed in response to Redkey’s motion to dismiss, with one
exception, don’t help clarify his Complaint.3 In his letter to the Court Phillips states that he wants
“a hearing on my Complaint against Redkey Town Board who did not return to get with me [sic]
about my Fed[eral] Law Suit against them and I need a hearing to present my evidence and how I
have been treated by the Redkey Town Board.” (ECF 8). His filing requesting a default judgment
includes two attachments. The first is a copy of a letter he received from Deborah Leonard, an
Assistant United States Attorney for the Northern District of Indiana, dated September 14, 1994.
(ECF 9), p. 2. The letter references routine scheduling matters in two cases, James Phillips v.
Dep’t of Veterans Affairs, No. 1:94-CV-233, and James Phillips v. Department of Defense, No.
1:94-CV-230, both of which Phillips filed in this Court in 1994 (and both of which he voluntarily
dismissed within weeks of filing). The relevance of this document to the present case is a
mystery. Also attached to his filing requesting a default judgment is a copy of an undated article
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Redkey’s Answer to Phillips’ Complaint states simply that “[t]he defendant denies the
allegations contained in the Plaintiff’s Complaint.” Answer (ECF 3), p. 1.
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from a publication named “The Commercial Review” that explains how Phillips decorated
“boats . . . with a patriotic theme” and displayed them “along with photos, to honor veterans.”
Id., p. 3. This display took place “in a lot on Main Street in Redkey.” Id. The relevance of this
document is also a mystery and neither it nor the 1994 letter from the U.S. Attorney’s Office help
explain what claim or claims Phillips is trying to assert. Finally, Phillips’ “supplement” to his
Complaint also consists of two documents. The first is a copy of a check made payable to
Phillips, and remitted by the Town of Redkey, in the amount of one dollar. (ECF 10), p. 1. The
check is dated May 30, 2017, includes a notation referencing a “sewage fund,” and was payable
from a “Sewage Works Construction Account.” Id. Once again the relevance of this document is
a mystery, although it does serve as a clue that the dispute underlying this lawsuit might have
something to do with a sewer construction project in Redkey that caused Phillips to lose a portion
of his property or incur damage to a portion of his property. But while the Court might be onto a
scent here, that’s hardly enough on which to base federal jurisdiction. The second document
included in Phillips’ supplement is a “Public Notice” of the Town of Redkey’s financial
statement for fiscal year 2016. Id., p. 3. Phillips offers no explanation about the relevancy of this
document either.
Phillips’ Complaint is pretty much a model of inadequacy when it comes to providing
“fair notice of what the . . . claim is and the grounds upon which it rests[,]” which is required by
Federal Rule 8 and which is the minimum required to survive a Rule 12(b)(6) motion to dismiss.
“To survive a Rule 12(b)(6) motion to dismiss, the complaint must comply with Rule 8(a)(2) by
providing ‘a short and plain statement of the claim . . .’” that also “gives defendants ‘fair notice’”
of the nature of that claim. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011) (citing
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Twombly, 550 U.S. at 555). This is true notwithstanding Phillips’ pro se status, since “even pro
se plaintiffs must identify a plausible right to relief in order to satisfy the pleading requirements.”
Simmons v. Yoder, et al., 2017 WL 3037437 (C.D.Ill. July 18, 2017) (citing Killebrew v. St.
Vincent Health, Inc., 295 F. App’x 808, 810 (7th Cir. 2008)). “A dismissal of a complaint is
appropriate when ‘the factual detail . . . is so sketchy that the complaint does not provide the type
of notice of the claim to which the defendant is entitled under Rule 8.’” Id. (quoting Srivastava v.
Daniels, 409 F.App’x 953, 955 (7th Cir. 2011)). Phillips’ Complaint is as sketchy as they come
and must be dismissed under Rule 12(b)(6) for that reason.
There is another reason why Phillips’ Complaint must be dismissed. Faced with a similar
case4 in which a pro se plaintiff sued Columbia County, Wisconsin, and the Columbia County
Board Building Committee under 42 U.S.C. § 1983 “for allegedly violating his property rights in
their efforts to condemn his property to make way for a new construction project[,]” the district
court granted the defendants’ Rule 12(b)(6) motions to dismiss for failure to state a claim,
holding that “[u]nder the ripeness doctrine for constitutional property rights (or ‘takings’) claims,
federal courts cannot adjudicate § 1983 claims directly related to a land dispute until the property
owner exhausts available state remedies for compensation.” Gruber v. Columbia Cty., 2017 WL
766917, at *1 (W.D. Wis. Feb. 27, 2017) (citing Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172, 193-94 (1985)). Similarly, Phillips’ Complaint

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The Gruber case is “similar” to this one only in that Gruber sued municipal entities
alleging an illegal “taking” of his private property. But it is important to note that the complaint
in Gruber, even though it was dismissed, was much more detailed than Phillips’ Complaint.
Gruber actually stated discernable claims and cited state and federal law as the basis for those
claims (in addition to expressly requesting “declaratory and injunctive relief[.]”). Gruber, 2017
WL 766917, at *1. Phillips’ Complaint, obviously, does none of that.
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states nothing that would indicate that this matter is ripe for review by this Court even assuming
his intention was to state such a claim. So, even if Phillips intends to assert some sort of
unconstitutional “taking” claim–which his current Complaint hints at but fails to do–it must be
dismissed due to “his failure to exhaust state remedies for just compensation.” Id. If Phillips has
exhausted his state law remedies he can indicate that in his Amended Complaint, and provide
relevant documentation if he has any, which would cure this defect in his original Complaint.
Finally, while Redkey’s motion to dismiss is well taken, its request for dismissal with
prejudice is not. It is well established that dismissal, whether pursuant to Rule 12(b)(1) or Rule
12(b)(6), generally should be without prejudice to give the plaintiff an opportunity to amend his
complaint to cure the deficiencies that led to dismissal. This is especially true in the case of pro
se plaintiffs, for the obvious reason that they are proceeding without the assistance of counsel.5
“In assessing a Rule 12(b)(1) motion, the plaintiff bears the burden of establishing subject matter
jurisdiction.” Torres v. Merck Sharp & Dohme Corp., — F.Supp.3d — , 2017 WL 2480707, *2-3
(N.D.Ill. June 8, 2017) (citing Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d
586, 588-89 (7th Cir. 2014)). Phillips has not met that burden since his Complaint provides
nothing more than a hint as to its jurisdictional basis and that failure warrants dismissal. This
dismissal will be without prejudice to permit Phillips an opportunity to remedy the defects in his
original Complaint (and also so as not to prevent him from pursuing his claim in another court if
jurisdiction lies elsewhere, such as in an Indiana state court). “As we said in Foster [v. DeLuca,
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The Court would be remiss if it did not encourage Phillips to seek the advice of an
attorney before proceeding with this lawsuit, even though he has a right to proceed without the
advice or assistance of a lawyer. The assistance of an attorney would be especially important if,
as alluded to above, Phillips is attempting to assert a federal “taking” claim that might be subject
to exhaustion of state remedies.
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545 F.3d 582, 584 (7th Cir. 2008)], ‘[d]istrict courts routinely do not terminate a case at the same
time that they grant a defendant’s motion to dismiss; rather, they generally dismiss the plaintiff’s
complaint without prejudice and give the plaintiff at least one opportunity to amend her
complaint.’” Childress v. Walker, 787 F.3d 433, 441 (7th Cir. 2015); see also, Mocek v. Allsaints
USA Limited, 220 F.Supp.3d 910, 913 (N.D.Ill. 2016) (“Dismissals because of absence of federal
jurisdiction ordinarily are without prejudice . . . because such a dismissal may improperly prevent
a litigant from refiling his complaint in another court that does have jurisdiction.” . . .
Accordingly, if defendant seeks dismissal with prejudice, then Rule 12(b)(1) is not an appropriate
avenue for that relief.”) (citations omitted); Zapata v. C3T, Inc., 2013 WL 5786579, *5
(E.D.Wisc. Oct. 28, 2013) (Rule 12(b)(1) dismissal for lack of jurisdiction should be without
prejudice); YP Recovery Inc. v. Yellowparts Europe, SL, 2016 WL 4549109 (N.D.Ill. Sept. 1,
2016) (granting motion to dismiss under Rule 12(b)(1) “without prejudice to Plaintiff’s ability to
pursue its claims in the proper court[]”).
Phillips’ Complaint also must be dismissed pursuant to Rule 12(b)(6) for failure to state a
claim, as discussed above. This Court has recognized that even when a pro se plaintiff files a
complaint that is so sparse or so confusing or so incoherent that no federal claim is discernable,
and which must be dismissed for that reason, he should be provided another bite at the apple.
Faced with just such a situation–a complaint that was incomprehensible–this Court dismissed the
complaint with leave to amend, explaining as follows:
Upon review, the complaint does not meet the minimal standards established by
Rule 8 and Rule 12(b)(6). A complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
That statement must be sufficient to “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Brooks v. Ross, 578 F.3d 574, 581
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(7th Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. [89]at 93 [2007]). “[W]here
the lack of organization and basic coherence renders a complaint too confusing to
determine the facts that constitute the alleged wrongful conduct, dismissal is an
appropriate remedy.” Stanard v. Nygren, 658 F.3d 792, 798 (7th Cir. 2011).
Here, [plaintiff’s] complaint is incomprehensible. While the Court acknowledges
the Supreme Court’s dictate that pro se complaints be liberally construed,
Erickson, 551 U.S. at 94, that does not obviate a pro se Plaintiff’s obligation to
provide basic notice of the nature of his claims to the opposing party under Rule
8(a)(2). [Plaintiff] has failed to do so. Therefore, it would also be proper to
dismiss this case without prejudice pursuant to Rule 12(b)(6). See, e.g., Loubser v.
Thacker, 440 F.3d 439, 433 (7th Cir. 2006) (“the complaint is confusing. The
district court would have been within its rights in dismissing it on that ground . . .
but with leave to replead”); Hopkins v. Indiana State Dep’t of Corrections, 2014
WL 3378674, at *2 (S.D. Ind. July 8, 2014) (dismissing complaint without
prejudice where the allegations were confusing).
Stokes v. Navistar International Corporation, 2015 WL 8180274 (N.D.Ind. Dec. 7, 2015) (Judge
DeGuilio).
For all of the reasons just discussed, this Court grants Redkey’s motion to dismiss but
does so without prejudice to Phillips’ ability to file an Amended Complaint. If Phillips files an
Amended Complaint that provides more background facts about his claim–that is, explaining
more specifically what Redkey did regarding his property, when the events occurred, and what
action, if any, he took to pursue any state law remedies–the Court will review it to determine if it
clarifies his claim and the jurisdictional basis for it.
If Phillips files an Amended Complaint that fails to cure the deficiencies that exist in his
original Complaint then his case would once again be subject to dismissal, at which point
dismissal with prejudice might be warranted, notwithstanding Phillips’ pro se status. As the
Seventh Circuit recognized in El v. AmeriCredit Financial Services:
Dismissals because of absence of federal jurisdiction ordinarily are without
prejudice . . . We added the qualifier “ordinarily” for two reasons. The first is the
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sensible remark in Caribbean Broadcasting System, Ltd. v. Cable & Wireless
P.L.C., 148 F.3d 1080, 1091 (D.C.Cir. 1998), that “in rare circumstances, a
district court may use its inherent power to dismiss with prejudice (as a sanction
for misconduct) even a case over which it lacks jurisdiction, and its decision to do
so is reviewed for abuse of discretion.” . . . Second, if the reason there’s no federal
jurisdiction is the plaintiff’s having predicated jurisdiction on a frivolous federal
claim, dismissal with prejudice is appropriate, Beauchamp v. Sullivan, . . . 21 F.3d
[789,] 790-91 [(7th Cir. 1994)], for such a suit will go nowhere in any court.
El v. AmeriCredit Fin. Servs., Inc., 710 F.3d 748, 751 (7th Cir. 2013). See also, Bigsby v. Davol
Inc., 2017 WL 2472274 *5 (S.D.Ind. June 8, 2017) (dismissing under Rule 12(b)(6) with
prejudice after plaintiff’s repeated failure to meet Rule 8 pleading requirements). This Court also
has the discretion to dismiss a complaint with prejudice if it determines that any attempt to
amend would be futile. See Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854, 860-61 (7th
Cir. 2001) (“Although leave to amend a complaint should be freely granted when justice so
requires, the district court need not allow an amendment . . . when the amendment would be
futile.”); Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666-68 (7th Cir.
2007) (Pro se plaintiffs are afforded great deference, but a court “is not required to allow them
opportunities to amend ad nauseam where doing so would be futile.”).
In the present case, at this juncture, dismissal without prejudice is warranted.
CONCLUSION
For the reasons discussed above, the Court rules as follows:
1) The motion to dismiss (ECF 5) is GRANTED and this case is DISMISSED WITHOUT
PREJUDICE;
2) Plaintiff James Phillips will be afforded an opportunity to file an Amended Complaint so he
can provide more factual detail to explain and support his claim. Phillips is directed to file any

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Amended Complaint on or before September 15, 2017. If Phillips fails to file an Amended
Complaint or chooses not to do so, this case will be dismissed without further notice or hearing;
3) Defendant Town of Redkey is INSTRUCTED NOT TO FILE AN ANSWER OR OTHER
RESPONSIVE PLEADING TO ANY PROPOSED AMENDED COMPLAINT UNTIL
DIRECTED BY THE COURT TO DO SO;
4) The Clerk of the Court is instructed to bring any Amended Complaint Phillips files to the
Court’s immediate attention after it is received and docketed; and
5) The Court interprets Phillips’ request for a hearing (ECF 8) and request for default judgment
(ECF 9) as motions and both are DENIED AS MOOT.
SO ORDERED.

Date: August 15, 2017.
/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana

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