Spann v. Wallace

Filing 4

OPINION AND ORDER: This case is DISMISSED pursuant to 28 U.S.C. § 1915A because it does not state a claim upon which relief may be granted. Signed by Judge Philip P Simon on 5/23/17. (Copy mailed to pro se party).(cer)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION JAMES SPANN, JR., Plaintiff, vs. CORY LEE WALLACE, Defendant. ) ) ) ) ) ) ) ) ) CAUSE NO. 3:17-CV-394-PPS-MGG OPINION AND ORDER James Spann, Jr., a pro se prisoner, filed a complaint under 42 U.S.C. § 1983 against his sister, Cory Lee Wallace. [DE 1.] “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) (internal quotations marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, I 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. Spann alleges that his sister put his name on her tax return. [DE 1 at 2.] It appears he is saying that she claimed him as a dependant without his authorization. [Id.] But his authorization was not required. See IRS Publication 501, Therefore, this does not state a claim. He also says she put “things” in his name without his permission. [Id. at 3.] It appears he is saying she fraudulently obtained credit in his name. [Id.] “In order to state a claim under § 1983 a plaintiff must allege: (1) that defendants deprived him of a federal constitutional right; and (2) that the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). However, identity theft is not a constitutional violation and his sister was not acting under color of state law. These allegations, therefore, do not state a claim. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Though it is usually necessary to permit a plaintiff the opportunity to file an amended complaint when a case is dismissed sua sponte, see Luevano v. Wal-Mart, 722 F.3d 1014, 1022-23 (7th Cir. 2013), that is unnecessary where the amendment would be futile. 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.”). Such is the case here. For these reasons, this case is DISMISSED pursuant to 28 U.S.C. § 1915A because it does not state a claim upon which relief may be granted. SO ORDERED. ENTERED: May 23, 2017. s/ Philip P. Simon PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT

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