Pramuk v. Hiestand et al

Filing 4

OPINION AND ORDER DENYING 3 MOTION for Leave to Proceed in forma pauperis filed by Susan E Pramuk and DISMISSING WITH PREJUDICE the 1 Complaint as factually frivolous and failing to state a claim for relief pursuant to 28 USC 1915(e)(2)(B). Clerk will enter judgment accordingly. Signed by Judge William C Lee on 12/22/2016. (cc: Pla)(lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SUSAN E. PRAMUK,

)
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Plaintiff,
)
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v.
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TERRY HIESTAND,
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PATRICK PRAMUK, CHERYL L.
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MONTALBANO RAHMANY, THE
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FOOD PANTRY, PORTER COUNTY
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SUPERIOR COURT, TILTON & TILTON )
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Defendants.
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CAUSE NO. 3:16-CV-572

OPINION AND ORDER
On August 26, 2016, Susan E. Pramuk, pro se, filed a complaint against various defendants
in this Court but failed to pay the filing fee or seek leave to proceed without prepayment of the
filing fee. Pramuk has now filed her petition for leave to proceed without prepayment of the fee
but, because her Complaint fails to state a claim for relief her petition will be DENIED and her
case DISMISSED.
Ordinarily, a plaintiff must pay a statutory filing fee of $400 to bring an action in federal
court. 28 U.S.C. § 1914(a). However, the federal in forma pauperis 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 in forma pauperis, the Court must make two
determinations: first, whether the litigant is unable to pay the costs of commencing the action, 28
U.S.C. § 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, 28 U.S.C. § 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
costs or give security therefor.” 28 U.S.C. § 1915(a). Here, the Petitioner states that she receives
$833/month in social security benefits and $873 in spousal support, for a total of $1,711 monthly.
In addition she receives, $113.00/month in public assistance to aid her in groceries. Annualized,
this income totals $21,888. The poverty guideline for a one person household in Indiana is
$11,880 per year. HHS Poverty Guidelines, 81 Fed. Reg. 4036 (Jan. 25, 2016).

Because

Pramuk’s stated income is substantially more than the poverty level, she does not qualify under
the in forma pauperis statute.
The inquiry does not end there, however. Even if Pramuk did qualify for in forma
pauperis status, district courts have an obligation under 28 U.S.C. § 1915(e)(2)(B) to screen
complaints before service on the defendants, and must dismiss the complaint if it is frivolous or
malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is
immune from such relief. In determining whether the complaint states a claim, the Court applies
the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006).
Under federal pleading standards,
a complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (quotation marks and internal citations omitted).
Furthermore, “[t]hreadbare recitals of the elements of the cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. To survive dismissal, the 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 Plaintiff has filed a dozen cases in the past few years, including against these particular
Defendants. 1 Here, the Plaintiff is suing six defendants, three of whom appear to be private
individuals and some of whom appear to be related to her. Additionally, she has sued Porter County
Superior Court, an entity not subject to suit, and well as the Broadway Community Food Pantry,
and the law firm of the attorney appointed as her Guardian Ad Litem.
Aside from suing Superior Court, which is not subject to suit and thus, not a proper
defendant, there are substantial problems with the remainder of the Complaint.

First, the

Complaint is vague and confusing, and does not adequately state a claim for relief under federal
pleading standards. There are a number of deficiencies. The Plaintiff fails to specify any date for
any of the alleged wrongs she suffered; indeed, each allegation is lacking in the specificity
necessary to determine whether she has stated a claim. Second, the Plaintiff has not alleged any
facts that would provide a jurisdictional basis to be in federal court. The Plaintiff filed her
complaint under 42 U.S.C. §1983 but she does not allege, nor does it appear, that any of the

1 See Pramuk v. Montalbano-Phelps, et. al., 2:08-CV-103-JVB (filed on Apr. 2, 2008) (dismissed for
failure to allege facts which would give rise to federal jurisdiction); Pramuk v. Pramuk, et. al., 2:11-CV261-RLM (filed July 21, 2011) (dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to cure
deficiencies in complaint); Pramuk v. Purdue Calumet Univ., 2:12-CV-77-RL, 2012 WL 6552920 (N.D.
Ind. Dec. 14, 2012) (filed on Feb. 22, 2012) (defendant’s motion to dismiss granted); Pramuk v. Vocation
Rehabilitation, 2:12-CV-78-JVB (filed on Feb. 22, 2012) (dismissed pursuant to Fed. R. Civ. P. 41(b) for
failure to respond to a court order); Pramuk v. Housing Opportunities, et. al., 2:12-CV-79-JVB (filed on
Feb. 22, 2012) (dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to respond to a court order);
Pramuk v. Wells Fargo Home Mortg., 2:12-CV-80-RM (filed on Feb. 22, 2012) (dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to allege facts that defendant acted under color of state law); Pramuk v.
Wells Fargo Home Mortg., 2:12-CV-417-WCL (filed on Oct. 16, 2012) (dismissed pursuant to Fed. R.
Civ. P. 41(b) for failure to respond to a court order); Pramuk v. Unterberg & Assocs. P.C., 2:12-CV-418RL (filed on Oct. 16, 2012) (dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to allege facts
that defendant acted under color of state law); Pramuk v. Northwestern Med. Imaging, 2:13-CV-68-RL,
2013 WL 6827816 (N.D. Ind. Dec. 23, 2013) (filed on Feb. 19, 2013) (defendant’s motion to dismiss
granted); Pramuk v. Montelbano, 2:14-CV-00226- TLS-PRC (filed June 30, 2014) (dismissed for failure
to cure deficiencies in the Complaint).

defendants acted under color of state law. See Dye v. Wargo, 253 F.3d 296, 299 (7th Cir. 2001)
(observing that “[Section] 1983 applies only to a ‘person’ who acts under color of state law.”). Nor
is it clear how these people are alleged to have violated her constitutional rights. The Plaintiff
appears to claim that the Defendants have defamed her and/or interfered with her ability to use her
home or conduct her business, but she has not provided enough detail about the underlying events
that happened, or when they happened, that caused her to file this civil rights case against the
Defendants.
Moreover, even if the Complaint was intended to fall under state law, there are no
allegations that climb to the level of a state law violation. Rather, the claims made by Pramuk in
her complaint, such as the assertion that one of the defendants “said I was in gun problems, not so,
I am a private detective” and later in the Complaint that her “qualifications” are “child psychology,
medical personal [sic], social science/social work; private detective/private investigator (state),
FBI elect, American psychology association, Cambridge, deputy sheriff” appear fantastical and
delusional.
The Court is mindful of the Seventh Circuit’s concern that when a complaint is dismissed
pursuant to 28 U.S.C. § 1915(e)(2), if there is no opportunity to amend “an IFP applicant’s case
could be tossed out of court without giving the applicant any timely notice or opportunity to be
heard to clarify, contest, or simply request leave to amend,” which negatively impacts “fair access
to the courts.” Luevano v. Wal-Mart Stores, Inc., No. 11-1917, 2013 WL 3599156, at *6 (7th Cir.
July 16, 2013). Here, however, there is no reason to believe that the frivolous factual allegations
could be remedied through more specific pleading; they are inherently frivolous. Accordingly, the
Complaint is dismissed with prejudice and without leave to amend. See, e.g. Denton, 504 U.S. at
34 (recognizing that where it appears that frivolous factual allegations could be remedied through

more specific pleadings, a court of appeals should consider whether the district court abused its
discretion by dismissing the complaint with prejudice or without leave to amend); Mathis v. N.Y.
Life Ins. Co., 133 F.3d 546, 548 (7th Cir. 1998) (stating that Denton recognized that dismissals
under materially identical predecessor to § 1915(e)(2)(B) on grounds of frivolousness could be
with prejudice); Holland v. City of Gary, 503 F. App’x 476, 477–78 (7th Cir. 2013) (finding that
the district court did not abuse its discretion in concluding through a screening of the plaintiff’s
complaint under 28 U.S.C. § 1915(e)(2)(B) that the plaintiff’s fantastic and delusional allegations
lacked any arguable basis in fact and that an amendment would be futile).
CONCLUSION
For the foregoing reasons, the Court DENIES the Plaintiff’s Application to Proceed
Without Prepayment of Fees [DE 3], and DISMISSES WITH PREJUDICE the Complaint [DE
1] as factually frivolous and failing to state a claim for relief pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Clerk will enter judgment accordingly.
SO ORDERED on December 22, 2016.
s/ William C. Lee
WILLIAM C. LEE
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION