Straw v. Seventh Circuit U.S. Court of Appeals

Filing 5

OPINION AND ORDER: The Court DISMISSES the 1 Complaint; DENIES the motions to proceed in forma pauperis 2 and 3 ; DENIES AS MOOT the Motion for U.S. Marshal Service of Summons and Complaint 4 ; GRANTS Plaintiff until 2/28/2018, to submit an amended complaint along with payment of the filing fee; and CAUTIONS Plaintiff that if he does not do so by that deadline, this case will be dismissed without further notice. Signed by Judge Rudy Lozano on 1/31/2018. (Copy mailed to pro se party)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
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ANDREW U.D. STRAW
Plaintiff,
v.

SEVENTH CIRCUIT COURT OF
APPEALS,
Defendant.

NO. 2:18-CV-28

OPINION AND ORDER
This matter is before the Court on the Motion for Permission
to Proceed In Forma Pauperis (DE #2), the Motion to Proceed In
Forma Pauperis (DE #3), and the Motion for U.S. Marshall Service
of Summons and Complaint (DE #4), filed by plaintiff Andrew U.D.
Straw (“Plaintiff”) on January 22, 2018.

For the reasons set

forth below, the Court:
(1)

DISMISSES the Complaint (DE #1);

(2)

DENIES the motions to proceed in forma pauperis (DE #2
and DE #3);

(3)

DENIES AS MOOT the Motion for U.S. Marshall Service of
Summons and Complaint (DE #4);

(4)

GRANTS Plaintiff until February 28, 2018, to submit an
1

amended complaint along with payment of the filing fee;
and
(5)

CAUTIONS Plaintiff that if he does not do so by that
deadline, this case will be dismissed without further
notice.

ANALYSIS
Plaintiff filed a complaint as well as two motions to proceed
in forma pauperis (“IFP”) on January 22, 2018.
DE #3.)

(See DE #1, DE #2,

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. § 1915(a)(1); see also Denton v. Hernandez, 504 U.S. 25,
27 (1992).

When presented with an IFP application, the district

court must make two determinations: (1) whether the suit has
sufficient merit; and (2) whether the plaintiff’s poverty level
justifies IFP status.

See 28 U.S.C. § 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 petition.

See Smith-Bey, 841 F.2d at 757.

A court must dismiss a case at any time, notwithstanding any
filing fee that may have been paid, if it determines that the suit
is frivolous, malicious, or fails to state a claim upon which
2

relief may be granted.

28 U.S.C. § 1915(e)(2)(B).

An action is

frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).

“A claim that no

reasonable person could suppose to have any merit” is considered
frivolous.

Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000).

To determine whether the suit states a claim upon which relief can
be granted under 28 U.S.C. § 1915 (e)(2)(B), a court applies the
same standard as it would to a motion to dismiss filed pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Luevano

v. Wal–Mart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir. 2013).
Therefore, the court will take “all well-pleaded allegations of
the complaint as true and view[] them in the light most favorable
to the plaintiff.”

Id. (citation omitted.)

To survive dismissal,

“a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).

A plaintiff “must plead some facts

that suggest a right to relief that is beyond the speculative
level.”

Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.

2011) (internal quotation marks and citation omitted).
means

that

the

complaint

must

contain

allegations

“This

plausibly

suggesting (not merely consistent with) an entitlement to relief.”
Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 633 (7th Cir.
3

2013) (internal quotation marks and citation omitted).
In this case, as to the financial prong of the analysis,
Plaintiff is not employed, but states that he has received $13,403
from

Social

Security,

and

$18,500

from

settlements, in the past twelve months.

two

ADA

(DE #3.)

married, and does not support any children or adults.

Title

II

He is not
(Id.)

The

federal poverty guideline for a household of one is $12,060.

See

HHS Poverty Guidelines, 82 Fed. Reg. 8831-03 (Jan. 31, 2017).
Plaintiff’s income of $31,903 is well above the federal poverty
guideline.

Moreover, Plaintiff failed to sign the motion to

proceed IFP attesting that he cannot pay the full filing fees and
costs or give security because of his poverty.

(See DE #3 at 2.)

Thus, the Court finds that Plaintiff is not financially eligible
to proceed IFP in this case, and the motion must be DENIED on that
basis.
As to the sufficiency prong of the analysis, Plaintiff’s
complaint alleges that the “Seventh Circuit U.S. Court of Appeals”
(“Seventh Circuit”) violated Plaintiff’s procedural due process
rights under the Fifth Amendment to the United States Constitution.
(DE #1, ¶45.)

Plaintiff is a disabled attorney who was disciplined

by the Indiana Supreme Court, and suspended from the bars of
several federal district courts.

(See id., ¶1, ¶5, ¶12, ¶¶24-26.)

His complaint stems from (1) those disciplinary proceedings, and
4

(2) a discrimination lawsuit that Plaintiff filed against the
Indiana

Supreme

Court

and

other

defendants

in

federal

court

(“Discrimination Suit”).
Regarding Plaintiff’s disciplinary proceedings, in 2017 the
Indiana

Supreme

Court

found

that

Plaintiff

professional misconduct and disciplined him.

had

engaged

in

Matter of Straw, 68

N.E.3d 1070, 1071 (Ind. 2017), cert. denied sub nom. Straw v. Ind.
Sup. Ct., 137 S. Ct. 2309 (2017), reh'g denied, 138 S. Ct. 352
(2017).

The Indiana Supreme Court had appointed the Honorable

James R. Ahler (“Judge Ahler”) to hear evidence regarding the
disciplinary complaint, and relied on his report in making its
findings.

68 N.E.3d at 1071.

Plaintiff was suspended from the

practice of law for bringing four frivolous actions in violation
of the state's rules of professional conduct.

Id. at 1073.

Plaintiff was allowed to petition for reinstatement, provided he
satisfied certain requirements for reinstatement.

Id.

In response to this discipline, the United States District
Court for the Southern District of Indiana ordered Plaintiff to
show why reciprocal discipline should not be imposed in accordance
with

Rule

Enforcement.

II

of

the

court’s

Local

Rules

of

Disciplinary

Matter of Straw, No. 1:17-MC-13-TWP-DKL, 2017 WL

4583512, at *1 (S.D. Ind. July 25, 2017).

The court ordered

reciprocal discipline under Rule II, and denied Plaintiff’s motion
5

to reconsider this decision.

Id.

On appeal in In re Straw, the

Seventh Circuit affirmed the federal district court’s decision to
refuse to reconsider this decision.

No. 17-2523, 2017 WL 6539217

(7th

Seventh

Cir.

Dec.

Plaintiff’s
Court's

21,

appeal

decision

2017).

The

“principally
to

impose

attacks

discipline.

Circuit
the

noted

Indiana
We

do

that

Supreme

not

have

jurisdiction to consider these objections because only the United
States Supreme Court may review attacks on state-court judgments
of attorney discipline.”

Id. at *1 (citations omitted).

The

Seventh Circuit also noted the deferential standard of review
accorded to a district court’s refusal to reconsider a decision
not to reinstate an attorney, and found that Plaintiff did not
show an abuse of discretion.

Id.

Turning to Plaintiff’s Discrimination Suit, Plaintiff filed
a complaint in federal court against the Indiana Supreme Court and
various

affiliates,

“defendants”),

including

alleging

Judge

violations

of

Ahler
42

(collectively,

U.S.C.

§

1983,

Americans with Disabilities Act, and the First Amendment.
v. Ind. Sup. Ct., 1:16-cv-3483-SEB-TAB (S.D. Ind.).

the

Straw

The district

court denied Plaintiff’s motion for a preliminary injunction and
motion for declaratory judgment, and entered judgment in favor of
the defendants.

See Straw v. Ind. Sup. Ct., No. 116CV03483, 2017

WL 289958, at *3 (S.D. Ind. Jan. 23, 2017); Straw v. Ind. Sup.
6

Ct., No. 116CV03483, 2017 WL 634162, at *2 (S.D. Ind. Feb. 16,
2017).

The court found, among other things, that Plaintiff’s

claims were barred by res judicata because Plaintiff had sued the
Indiana Supreme Court in 2015 for disability discrimination, and
that suit was dismissed for failure to state a claim.

Straw, 2017

WL 634162, at *2; see Straw v. Ind. Sup. Ct., No. 1:15-cv-1015,
2016 WL 344720 (S.D. Ind. Jan. 28, 2016).
district court’s decision.
291 (7th Cir. 2017).

Plaintiff appealed the

Straw v. Ind. Sup. Ct., 692 F. App'x

The appeal was assigned to a three-judge

panel—Judges Posner, Kanne, and Sykes, and the panel issued a
decision unanimously affirming the district court's judgment based
on res judicata.

Id. at 294.

Plaintiff then filed a petition for

rehearing and rehearing en banc.

Id.

Around that time, Judge

Kanne learned that one of his former law clerks was among the
appellees

and

retroactively

recused

himself.

Id.

The

two

remaining judges on the panel constituted a quorum, see 28 U.S.C.
§ 46(d), and did not change their view.
active

service

requested

a

vote

on

Id.

Because no judge in

Plaintiff’s

petition

for

rehearing en banc, and the remaining judges on the panel voted to
deny rehearing, the petition for rehearing and for rehearing en
banc was denied.

Id.

The United States Supreme Court recently

denied Plaintiff’s petition for certiorari.

Straw v. Ind. Sup.

Ct., No. 17-6812, 2018 WL 311729 (U.S. Jan. 8, 2018).
7

The instant complaint alleges that the Seventh Circuit denied
Plaintiff

procedural

due

process

in

violation

of

the

Fifth

Amendment as follows:
1.

The Seventh Circuit appointed Judge Ahler to United States
Bankruptcy Judge while he was an appellee in Plaintiff’s
Discrimination

Suit,

favoritism

violation

in

allegedly
of

constituting

Plaintiff’s

bias

right

to

and
due

process (id., ¶¶19, 30-32, 44, 45; see id., ¶36 (alleging
that “every judge on the Judicial Council then had an
obligation not to vote against [Plaintiff] or otherwise
favor [his] appellees” after hiring Judge Ahler);
2.

Judge Kanne “first voted against [Plaintiff] and then
immediately recused” in the appeal of the Discrimination
Suit, presumably because Judge Ahler had clerked for Judge
Kanne (id., ¶33; see id., ¶40);

3.

Judge

Wood’s

opinion

in

In

re

Straw

1

allegedly

demonstrates the Seventh Circuit’s bias in favor of the
Indiana Supreme Court (id., ¶37; see id., ¶45 (alleging
Judge Wood failed to give Plaintiff a hearing before
issuing the decision)); and
4.

Judge Wood’s decision to “cut[] off [Plaintiff’s] ability

1

While the complaint cites “Straw v. U.S. District Court, No. 17-2523 (7th
Cir.),” (DE #1, ¶37, ¶45), the Court believes Plaintiff intended to reference
In re Straw, No. 17-2523, 2017 WL 6539217 (7th Cir. Dec. 21, 2017), which is an
opinion by Judge Wood with the same appeal case number.

8

to make Seventh Circuit filings” in cases when he asks
her to recuse is retaliation (id. ¶38 (citing Straw v.
Village of Streamwood, No. 17-1867 (7th Cir.)2).
Plaintiff seeks $5 million in compensatory damages “because
this was the damages amount in [the Discrimination Suit] which
[he] was denied on appeal. . . .”

(DE #1, ¶48.)

He seeks punitive

damages of $20 million (id. ¶50), as well as a declaratory judgment
that (1) Indiana’s discipline was discriminatory, (2) taking a
federal law license with no hearing after not protecting from state
court civil rights violence violates due process, and (3) no
appellee may ever be hired by the Court of Appeals during the
pendency of any appeal (id. ¶46).
Plaintiff’s claim against the Seventh Circuit is without
merit.

“The Seventh Circuit, as an arm of the United States, is

not subject to suit at all unless Congress has explicitly waived
immunity.

United States v. Shaw, 309 U.S. 495, 500–01, 60 S. Ct.

659, 660–61, 84 L.Ed. 888 (1940) (‘[W]ithout specific statutory
consent, no suit may be brought against the United States.
officer by his action can confer jurisdiction.

No

Even when suits

are authorized they must be brought in designated courts.’).”

2

The docket proceedings in Straw v. Vill. of Streamwood, No. 17-1867 (7th Cir.),
shows an order that Plaintiff’s motion for the recusal of Judge Wood was taken
with the case, and that anything else Plaintiff tenders in that case shall be
returned unfiled until the decision is issued. (Straw v. Village of Streamwood,
No. 17-1867 (7th Cir.), DE #50.)

9

Matter of Skupniewitz, 73 F.3d 702, 705 n.1 (7th Cir. 1996); see
Garner v. U.S. Dist. of S.C., No. CIVA 308-3913-TLWJRM, 2009 WL
2192664, at *3 (D.S.C. July 21, 2009) (accepting report and
recommendation

holding

sovereign immunity).

that

federal

courts

are

protected

by

The plaintiff bears the burden of proving

that a particular statute waives sovereign immunity.

Clark v.

United States, 326 F.3d 911, 912 (7th Cir. 2003) (“To maintain an
action against the United States in federal court, a plaintiff
must identify a statute that confers subject matter jurisdiction
on the district court and a federal law that waives the sovereign
immunity of the United States to the cause of action.”).
the

complaint

alleges

no

facts

indicating

that

the

Here,
Seventh

Circuit’s immunity was waived.
The complaint cites Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as a basis for
Plaintiff’s

claim.

(DE

#1,

¶55.)

While

the

Supreme

Court

recognized an implied cause of action for monetary damages against
federal agents sued as individuals for constitutional violations
in Bivens, it has declined to imply a similar cause of action
directly against federal agencies.
U.S. 471, 473 (1994).

See F.D.I.C. v. Meyer, 510

Here, the complaint names only the Seventh

Circuit as a defendant.

As such, Plaintiff can obtain no relief

10

under Bivens.3

See Coggins v. United States Ct. of App., No.

CIV.A.309CV452-TMH, 2009 WL 3017412, at *3 (M.D. Ala. Sept. 17,
2009) (rejecting Bivens claims against the Eleventh Circuit);
Edwards v. Fifth Cir. Ct. of App., No. 3:02-cv-0976, 2003 WL
21500434, at *3 (N.D. Tex. Apr. 23, 2003) (rejecting Bivens claims
against the Fifth Circuit), adopting report and rec., 2003 WL
21318362, at *1 (N.D. Tex. May 19, 2003) (dismissing complaint as
frivolous under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)).
Because Plaintiff’s claim against the Seventh Circuit is
based on a meritless legal theory, his claim must be DISMISSED
pursuant to 28 U.S.C. § 1915(e)(2)(B).

However, because it is

routine practice in this circuit, Plaintiff will be given an
opportunity to amend his complaint.

Should Plaintiff choose to

pay the filing fee and amend his complaint, any claims alleged
must have both a sufficient factual and legal basis as described
more fully above.
CONCLUSION
For the reasons set forth above, the Court:
(1)

DISMISSES the Complaint (DE #1);

3
To the extent that Plaintiff intended to assert claims against individual
judges sitting on the Seventh Circuit, the Court notes that, short of “the
complete absence of all jurisdiction,” judges are absolutely immune from damages
lawsuits arising out of their judicial actions. Mireles v. Waco, 502 U.S. 9,
11-12 (1991) (citations omitted); see Loubser v. Thacker, 440 F.3d 439, 442
(7th Cir. 2006) (“Of course [plaintiff's] claims against the judges are barred;
she is complaining about their judicial conduct, and they have absolute immunity
from such damages claims.”) (citations omitted).

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(2)

DENIES the motions to proceed in forma pauperis (DE #2
and DE #3);

(3)

DENIES AS MOOT the Motion for U.S. Marshall Service of
Summons and Complaint (DE #4);

(4)

GRANTS Plaintiff until February 28, 2018, to submit an
amended complaint along with payment of the filing fee;
and

(5)

CAUTIONS Plaintiff that if he does not do so by that
deadline, this case will be dismissed without further
notice.

DATED:

January 31, 2018

/s/ RUDY LOZANO, Judge
United States District Court

12