Stewart bey v. Christopher C Myers & Associates et al

Filing 3

OPINION AND ORDER: The Court DENIES the Plaintiff's Motion for Leave to Proceed in Forma Pauperis 2 ; DISMISSES WITHOUT PREJUDICE the Complaint 1 ; GRANTS the Plaintiff until 8/3/2018, to file an amended complaint, accompanied by a new Petiti on to Proceed Without Prepayment of Fees and Costs or th e filing fee; and CAUTIONS him that if he does not respond by the above deadline, this case will be dismissed without further notice. Signed by Chief Judge Theresa L Springmann on 7/16/2018. (Copy mailed to pro se party)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TYQUAN STEWART BEY, a/k/a
Tyquan Stewart,
Plaintiff,
v.
CHRISTOPHER C. MYERS &
ASSOCIATES, et al.,
Defendants.

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CAUSE NO.: 1:18-CV-186-TLS

OPINION AND ORDER
Plaintiff Tyquan Stewart bey, proceeding pro se, filed a Complaint [ECF No. 1] on June
18, 2018, against Defendants Christopher C. Myers & Associates, David Frank, Mark
Baeverstad, Rothberg Logan & Warsco LLP, and Parkview Behavior Hospital. He also filed a
Motion for Leave to Proceed in Forma Pauperis [ECF No. 2].
Ordinarily, 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 (IFP) 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 (1989). To authorize a litigant to proceed IFP, a court must make two determinations: first,
whether the litigant is unable to pay the costs of commencing the action, § 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,
§ 1915(e)(2)(B).

Under 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). The Plaintiff has done so in this case.
However, the inquiry does not end here.
In assessing whether a plaintiff may proceed IFP, 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 28 U.S.C. § 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 28 U.S.C. § 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 Cir. 2013). Federal courts are also required to “check to see that
federal jurisdiction is properly alleged.” Wis. Knife Works v. Nat’l Metal Crafters, 781 F.2d
1280, 1282 (7th Cir. 1986); see also Neitzke v. Williams, 490 U.S. 319, 326 n.6 (1989).
Federal courts are courts of limited jurisdiction, see Johnson v. U.S. Office of Personnel
Management, 783 F.3d 655, 660 (7th Cir. 2015), and the Plaintiff has the burden to establish
subject matter jurisdiction. See Lee v. City of Chi., 330 F.3d 456, 468 (7th Cir. 2003). In civil
actions, federal district courts most commonly exercise federal question jurisdiction or diversity
jurisdiction over cases or controversies. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
United States.”); see also 28 U.S.C. § 1332(a) (“The district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of

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$75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]”). The
instant case appears to stem from a settlement in a prior lawsuit. (See Compl. at 2–9.)
The Plaintiff’s Complaint contains numerous claims. Three1 of these claims appear to fall
under federal statutes: the Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119–
1025; the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; and the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. These claims cannot proceed. First, the
Affordable Care Act does not contain a private cause of action. Christine H. Monahan, Note,
Private Enforcement of the Affordable Care Act: Towards an “Implied Warranty of Legality” in
Health Insurance, 126 Yale L.J. 1118, 1150 (2017) (“[B]ecause Congress did not intend to create
a federal cause of action to enforce the ACA, the courts may not imply one.”) Second, the
Plaintiff has failed to explain how any of the Defendants are covered by the ADA in these
circumstances. The ADA prohibits discrimination based on disability in several settings,
including employment (Title I), public entities (Title II), public accommodations (Title III), and
telecommunications (Title IV). None of these scenarios are applicable to the relationship
between the Plaintiff and any of the Defendants.
Finally, the Plaintiff’s claim under the Rehabilitation Act is also deficient. “To state a
discrimination claim under the Rehabilitation Act, [the] Plaintiff must allege that he was: (1) an
individual with a disability; (2) otherwise qualified for the benefit sought; (3) discriminated
against solely because of his handicap; and (4) discriminated against by an entity that received
federal financial help.” Thurman v. Mount Carmel High Sch., 191 F. Supp. 3d 894, 898 (N.D. Ill.
2016) (citing Khan v. Midwestern Univ., 147 F. Supp. 3d 718, 722–23 (N.D. Ill. 2015)) (internal

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The Plaintiff also cites to the “Equality Act,” which is not a duly enacted federal statute.

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quotation marks omitted). The Plaintiff has failed to allege the second, third, and fourth
requirements for a claim under the Rehabilitation Act.
As such, the Plaintiff has not stated a federal claim. All remaining claims are based on
state law. The Court has jurisdiction over these state law claims only if the parties are (1)
completely diverse and (2) if the amount in controversy exceeds $75,000. See 28 U.S.C.
§ 1332(a). The Plaintiff, however, has not alleged the Defendants’ citizenship and has not stated
the total amount in controversy. If the Plaintiff wishes to proceed under diversity of citizenship
jurisdiction, then he must allege his state of citizenship, the state of citizenship of each
Defendant, and the amount in controversy. The Court will lack jurisdiction, and must dismiss the
Plaintiff’s case, if a single Defendant is a citizen of Indiana and the Plaintiff pursues exclusively
state law claims. That said, the Plaintiff is free to pursue his state-law claims in state court.

CONCLUSION
For the foregoing reasons, the Court:
(1)

DENIES the Plaintiff’s Motion for Leave to Proceed in Forma Pauperis [ECF No.2];

(2)

DISMISSES WITHOUT PREJUDICE the Complaint [ECF No. 1];

(3)

GRANTS the Plaintiff until August 3, 2018, to file an amended complaint, accompanied

by a new Petition to Proceed Without Prepayment of Fees and Costs or the filing fee; and
(4)

CAUTIONS the Plaintiff that if he does not respond by the above deadline, this case will

be dismissed without further notice.
SO ORDERED on July 16, 2018.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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