Frohwerk v. Certain Property at 5501 S 1100 West
Filing
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OPINION AND ORDER: This action is DISMISSED as frivolous and malicious pursuant to 28 U.S.C. § 1915A. Signed by Judge Rudy Lozano on 11/1/2011. cc: Frohwerk (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DAVID FROHWERK,
Plaintiff,
vs.
CERTAIN PROPERTY AT
5501 S. 1100 WEST,
Defendant.
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NO. 2:11-CV-382
OPINION AND ORDER
David Frohwerk, a pro se prisoner, filed a case-initiating
document labeled, “Motion for Attachment Lien and Bond Hearing.”
(DE 1.) For the reasons set forth below, this action is DISMISSED
as frivolous and malicious pursuant to 28 U.S.C. § 1915A.
BACKGROUND
David Frohwerk, a pro se prisoner, initiated this case on
October 21, 2011, by filing a document labeled, “Motion for
Attachment Lien and Bond Hearing.” (DE 1.) In essence, Frohwerk
seeks to place an “attachment lien” on the Westville Correctional
Facility (“Westville”) based on what he believes to be inadequate
conditions at that facility. (Id.)
DISCUSSION
Pursuant to 28 U.S.C. § 1915A, the Court must review a
prisoner complaint and dismiss it if 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. 28 U.S.C. § 1915A. The court applies the same standard
as when deciding a motion to dismiss under FEDERAL RULE
OF
CIVIL
PROCEDURE 12(b)(6). Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th
Cir. 2006).
To survive dismissal, a complaint must state a claim for
relief that is plausible on its face. Bissessur v. Indiana Univ.
Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has
facial plausibility when the plaintiff pleads factual content that
allows
the
court
to
draw
the
reasonable
inference
that
the
defendant is liable for the misconduct alleged.” Id. at 603. Thus,
a “plaintiff must do better than putting a few words on paper that,
in the hands of an imaginative reader, might suggest that something
has happened to her that might be redressed by the law.” Swanson v.
Citibank, N.A., 614 F.3d 400, 403 (7th Cir.2010) (emphasis in
original). The court must bear in mind, however, that “[a] document
filed pro se is to be liberally construed, and a pro se complaint,
however
inartfully
pleaded,
must
be
held
to
less
stringent
standards than formal pleadings drafted by lawyers.” Erickson v.
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Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations
omitted).
This action is frivolous. Frohwerk is not entitled to place a
“lien” on the correctional facility, since he does not have a
judgment against the facility. See generally IND. CODE § 34-55-9-2.
To the extent Frohwerk is attempting to challenge the conditions of
his confinement at Westville, he already has a case pending in
which he raises these same allegations. See Frohwerk v. Lemmon, et
al., No. 2:11-CV-221-PS (N.D. Ind. filed June 24, 2011.) It is
malicious for Frohwerk to file multiple suits based on the same set
of facts. See 28 U.S.C. § 1915A; Lindell v. McCallum, 352 F.3d
1107, 1109 (7th Cir. 2003) (suit is “malicious” for purposes of 28
U.S.C. § 1915A if it is intended to harass or is otherwise abusive
of the judicial process); Pittman v. Moore, 980 F.2d 994, 994-95
(5th Cir. 1993) (it is malicious for a plaintiff with in forma
pauperis status to file a lawsuit that duplicates allegations of
another pending lawsuit). Accordingly, this case must be dismissed.
CONCLUSION
For the reasons set forth above, this action is DISMISSED as
frivolous and malicious pursuant to 28 U.S.C. § 1915A.
DATED:
November 1, 2011
/s/RUDY LOZANO, Judge
United States District Court
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