Ray v. Clerk of the Indiana Supreme Court of Appeals
Filing
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OPINION AND ORDER: The Amended Complaint is DISMISSED (in 2:16cv139) with prejudice as to the Clerk of the Indiana Supreme Court of Appeals. Signed by Judge Rudy Lozano on 11/28/2016. (lhc)(cc: Plaintiffs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KWAME RAY,
Plaintiff,
vs.
CLERK OF THE INDIANA SUPREME
COURT OF APPEALS, and
METHODIST HOSPITAL SOUTH
LAKE CAMPUS,
Defendants.
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) CAUSE NO. 2:16-CV-139
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OPINION and ORDER
This matter is before the Court on: (1) the Amended Complaint
filed on August 25, 2016 (DE #6); (2) a Petition to Proceed without
Pre-payment of Fees and Costs filed by Thomas J. Ray on August 25,
2016 (DE #5); and (3) an application to proceed in forma pauperis
filed by Kwame J. Ray on August 25, 2016 (DE #7).
For the reasons
explained below, Thomas J. Ray’s request to proceed in forma
pauperis is DENIED AS MOOT, Kwame J. Ray’s request to proceed in
forma pauperis is DENIED, and the Amended Complaint is DISMISSED
WITH PREJUDICE as to the Clerk of the Indiana Supreme Court of
Appeals, and WITHOUT PREJUDICE as to Methodist Hospital South Lake
Campus.
On August 3, 2016, this Court outlined (for a second time) the
shortcomings of the complaints pending at that time, consolidated
the three related cases, dismissed each of the complaints, and
permitted Thomas J. Ray and Kwame J. Ray another opportunity to
file an amended complaint that complied with the requirements of
Federal Rule of Civil Procedure 8.
Thomas J. Ray and Kwame J. Ray
were also given another opportunity to seek in forma pauperis
(“IFP”) status. They were cautioned that, “if an amended compliant
is filed that again fails to state a claim, the action will be
dismissed with prejudice.”
(DE #4).
An Amended Complaint was filed on August 25, 2016, listing
only Kwame J. Ray as a plaintiff, and listing only Methodist
Hospital South Lake Campus (“Methodist”) as a defendant in the
caption.
(DE #6).
The body of the complaint, however, also lists
the Clerk of the Indiana Court of Appeals as a defendant.
at 2).
(DE #6
Although only Kwame Ray is listed as a plaintiff, IFP
petitions were filed by both Kwame J. Ray and Thomas J. Ray.
Because Thomas J. Ray is not a plaintiff to the Amended Complaint,
his IFP petition is DENIED AS MOOT.
With
regard
to
Kwame
J.
Ray’s
(hereinafter
“Plaintiff”)
request to proceed IFP, the IFP statute, 28 U.S.C. section 1915,
allows an indigent plaintiff to commence a civil action without
prepaying the administrative costs (e.g. filing fee) of the action.
See 28 U.S.C. section 1915(a)(1); see also Denton v. Hernandez, 504
U.S. 25, 27 (1992).
When presented with an IFP application, the
district court makes two determinations: (1) whether the suit has
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sufficient merit; and (2) whether the plaintiff’s poverty level
justifies IFP status.
See 28 U.S.C. section 1915(e)(2); Denton,
504 U.S. at 27; Smith-Bey v. Hosp. Adm’r, 841 F.2d 751, 757 (7th
Cir. 1988).
If a court finds that the suit lacks sufficient merit
or that an inadequate showing of poverty exists, the court must
deny the IFP application.
See Smith-Bey, 841 F.2d at 757.
District courts have the power under 28 U.S.C. § 1915(e)(2)(B)
to screen complaints before service of the complaint on the
defendants, and must dismiss the complaint if it fails to state a
claim.
apply
Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999).
the
addressing
same
a
standard
motion
Procedure 12(b)(6).
to
under
section
dismiss
under
met;
however,
Federal
Rule
as
of
when
Civil
Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014, 1018, 1027 (7th Cir. 2013).
been
1915(e)(2)(B)
Courts
the
Court
Here, the financial prong has
finds
the
suit
does
not
have
sufficient merit to continue.
A
plaintiff
is
required
to
include
allegations
in
the
complaint that “plausibly suggest that the plaintiff has a right to
relief, raising that possibility above a ‘speculative level’” and,
“if they do not, the plaintiff pleads itself out of court.”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th
Cir. 2007) (quoting in part Twombly, 550 U.S. at 569 n. 14 (2007)).
“Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
3
allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (quotation marks, ellipsis, citations and
footnote omitted).
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 notes that Plaintiff is appearing pro se in this
matter. Generally, although “pro se litigants are masters of their
own complaints” and “[d]istrict judges have no obligation to act as
counsel or paralegal to pro se litigants,” Myles v. United States,
416 F.3d 551, 552 (7th Cir. 2005), 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. Pardus, 551 U.S. 89, 94
(2007). However, even pro se plaintiffs must “make their pleadings
straightforward so that judges and adverse parties need not try to
fish a gold coin from a bucket of mud.”
United States ex rel.
Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).
They must “be presented with clarity sufficient to avoid requiring
a district court or opposing party to forever sift through its
pages . . . .”
1990).
Jennings v. Emry, 910 F.2d 1434, 1436 (7th Cir.
Federal Rule of Civil Procedure 8(a)(2) requires that
complaints contain a “short and plain statement of the claim
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showing that the pleader is entitled to relief.”
See Vicom, Inc.
v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 775-76 (7th Cir.
1994) (“A complaint that is prolix and/or confusing makes it
difficult for the defendant to file a responsive pleading and makes
it difficult for the trial court to conduct orderly litigation.”).
In
sum,
Rule
8
requires
a
complaint
to
be
presented
with
“intelligibility sufficient for a court or opposing party to
understand whether a valid claim is alleged and if so what it is.”
Vicom, 20 F.3d at 775.
In this case, the Amended Complaint, like earlier complaints,
alleges that the Clerk of the Indiana Supreme Court of Appeals
violated Plaintiff’s rights under the 5th, 6th, 7th, 8th and 10th
Amendments of the United States Constitution.
It has added
violations of additional provisions too: the 1st, 2nd, 3rd, 4th, and
14th Amendments of the United States Constitution.
The factual
recitations of earlier complaints are no longer included.
The
current complaint is completely lacking of factual allegations
against the Clerk of the Indiana Court of Appeals.
Plaintiff has
not satisfied the federal notice pleading standards in accordance
with Rule 8. Accordingly, Plaintiff has failed to state a claim
against the Clerk of the Indiana Court of Appeals, and th3e Clerk
of the Indiana Court of Appeals is dismissed with prejudice.
With regard to Methodist, the Amended Complaint alleges that
one of Methodist’s employees interviewed Plaintiff’s children and,
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as a result of that interview, the department of child and family
services became involved.
The Amended Complaint indicates that,
“to the best of my knowledge this is a Medical Malpractice Law Sue
[sic] Complaint.” (DE #6 at 4). Plaintiff seeks injunctive relief
and money damages because Methodist caused him to “stop being a
Father.”
(Id.).
This Court has an obligation to ensure that it has proper
subject matter jurisdiction over each lawsuit that is brought in
this Court.
Wisconsin Knife Works v. National Metal Crafters, 781
F.2d 1280, 1282 (7th Cir. 1986).
This Court is a court of limited
jurisdiction, and in the absence of either diversity jurisdiction
or federal question jurisdiction, the case must be dismissed.
See
Bovee v. Broom, 732 F.3d 743, 744 (7th Cir. 2013).
For this Court to have diversity jurisdiction over Plaintiff’s
claim against Methodist, the amount in controversy must exceed
$75,000,
and
there
must
plaintiff and defendant.
be
diversity
of
citizenship
between
The complaint must allege the amount in
controversy and the citizenship of all parties.
Guaranty Nat’l
Title Company, Inc. v. J.E.G. Associates, 101 F.3d 57, 58 (7th Cir.
1996); Zenith Electronics Corp. v. Kimball International Mfg.,
Inc., 114 F.Supp.2d 764, 767 (E.D. Ill. 2000).
Complaint
does
not
allege
citizenship of the parties.
the
amount
in
The Amended
controversy
or
the
Plaintiff has not alleged diversity
jurisdiction and nothing in the Amended Complaint suggests that
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there is diversity of citizenship between the parties.
Federal question jurisdiction, pursuant to 28 U.S.C. section
1331, requires that the action arise “under the Constitution, laws,
or treaties of the United States.” 28 U.S.C. § 1331.
“Ordinarily,
the basis for federal-question jurisdiction must be apparent from
the face of the plaintiff’s well-pleaded complaint.”
Crosby v.
Cooper B-Line, Inc., 725 F.3d 795, 800 (7th Cir. 2013); see also
Northeastern Rural Elec. Membership Corp. v. Wabash Valley Power
Association, 707 F.3d 883 (7th Cir. 2013).
Plaintiff has cited to
no federal statute or law in reference to his claims against
Methodist.
The Amended Complaint is brought using a form for
claims under 42 U.S.C. section 1983. Under 42 U.S.C. § 1983, “[e]very
person who, under color of any statute ... of any State ... subjects, or
causes to be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law ....” See 42 U.S.C. § 1983).
To establish a claim under § 1983,
a plaintiff must show both that a constitutional right has been violated
and that the alleged wrongdoer acted under color of state law.
Atkins, 487 U.S. 42, 48 (1987).
West v.
Plaintiff cannot state a claim against
Methodist under 42 U.S.C. section 1983 because Methodist is not a state
actor. Accordingly, this Court does not have subject matter jurisdiction
over Plaintiff’s claim against Methodist.
Even if this Court had subject matter jurisdiction over
Plaintiff’s case, the factual allegations still fail to state a
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claim for which relief could be granted.
The Amended Complaint
contains no facts from which it can be concluded that Methodist is
liable to Plaintiff for medical malpractice or any other cause of
action.
The Amended Complaint does not contain sufficient factual
matter to “state a claim to relief that is plausible on its face.”
Bell
Atlantic
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007).
Because this suit is lacking in merit, Kwame J. Ray’s request
to proceed IFP is DENIED.
Any effort to amend the complaint would
be futile. Carpenter v. PNC Bank, Nat. Ass’n, No. 15-2732, __ Fed.
Appx. __, __, 2016 WL 412839, at *2 (7th Cir. Feb. 3, 2016)
(quotation marks omitted). See Luevano v. Wal-Mart, 722 F.3d 1014
(7th Cir. 2013) and Hukic v. Aurora Loan Servs., 588 F.3d 420, 432
(7th Cir. 2009) (“[C]ourts have broad discretion to deny leave to
amend where . . . the amendment would be futile.”).
Accordingly,
the Amended Complaint is DISMISSED with prejudice as to the Clerk
of the Indiana Court of Appeals, and WITHOUT PREJUDICE as to
Methodist.
DATED: November 28, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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