Stone v. Dish Network
OPINION AND ORDER: Judge DeGuilio has already determined that the court lacked jurisdiction over Stone's claims against Dish. That holding is preclusive in the present case, and therefore the court lacks jurisdiction in this case as well. For the foregoing reasons, the petition to proceed in forma pauperis is DENIED and this case is DISMISSED. (cc: Stone) Signed by Senior Judge James T Moody on 12/16/2016. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KIEL RICHARD STONE,
No. 3:16 CV 847
OPINION AND ORDER
Kiel Richard Stone, a pro se plaintiff, has filed a complaint (DE # 1) along with a
motion for leave to proceed in forma pauperis (DE # 2). 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. To authorize a litigant to
proceed in forma pauperis, a 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).
In his complaint, Stone alleges that Dish Network (“Dish”) violated his rights by
permitting law enforcement agencies to illegally wiretap his home satellite receiver. (DE
# 1 at 2.) He alleges that Dish’s policies and procedures resulted in the invasion of his
privacy and lost investment opportunities. (Id.)
This is the second case in which Stone has raised these claims against Dish. The
first case was screened pursuant to § 1915(e)(2)(B) and dismissed without prejudice by
Judge Jon E. DeGuilio for lack of jurisdiction. Stone v. Dish Network, No. 3:16-CV-792-JDMGG (N.D. Ind. Nov. 30, 2016). Stone has not filed a motion to reconsider Judge
Deguilio’s order, nor has he filed a notice of appeal in that case. Rather, he has filed the
present complaint which includes additional allegations addressing the issue of
jurisdiction. (DE # 1 at 4.)
“Although only judgments on the merits preclude the parties from litigating the
same cause of action in a subsequent suit, that does not mean that dismissals for a lack
of jurisdiction have no preclusive effect at all.” Perry v. Sheahan, 222 F.3d 309, 318 (7th
Cir. 2000). Rather, “a dismissal for lack of jurisdiction precludes relitigation of the issue
actually decided, namely the jurisdictional issue.” Id.
Judge DeGuilio has already determined that the court lacked jurisdiction over
Stone’s claims against Dish. That holding is preclusive in the present case, and therefore
the court lacks jurisdiction in this case as well. Whatever the merits of Stone’s additional
jurisdictional allegations, they do not factor into the analysis of this issue in this case. Id.
(“where a prior suit is dismissed for lack of jurisdiction, the inclusion of additional
factual allegations on the jurisdictional issue will not avoid issue preclusion when those
facts were available at the time the original complaint was filed”).
Ordinarily, a pro se plaintiff should be afforded the opportunity to amend his
complaint. Felton v. City of Chicago, 827 F.3d 632, 635 (7th Cir. 2016). However, leave to
amend the complaint is unnecessary where it is clear from the face of the complaint that
“any amendment would be futile or otherwise unwarranted.” Carpenter v. PNC Bank,
Nat. Ass’n, No. 15-2732, 633 Fed. Appx. 346, 348 (7th Cir. Feb. 3, 2016). Such is the case
with the present complaint as there are no additional allegations that could circumvent
the preclusive effect of Judge DeGuilio’s order.
For the foregoing reasons, the petition to proceed in forma pauperis (DE # 2) is
DENIED and this case is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
Date: December 16, 2016
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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