BANDY v. INTERSTATE BRANDS CORPORATION

Filing 4

Entry Concerning Selected Matters: 1. The Plaintiff's 2 Motion for Leave to Proceed in forma pauperis is GRANTED. 2. The Complaint is DISMISSED for reasons set forth in the Entry. 3. The dismissal of the Complaint will not in this instance lead to the dismissal of the action. The Plaintiff shall have throught September 9, 2010, in which to file an Amended Complaint. 4. The Amended Complaint shall conform to the guidelines set forth in the Entry. 5. Proceedings other than as specifi ed are STAYED until the Amended Complaint is filed or until the deadline for the filing of an Amended Complaint has passed. 6. If an Amended Complaint is filed the court will issue whatever order is warranted. If No Amended Complaint is file as directed, the action will be dismissed consistent with the analysis in paragraph 2 of this Entry. ***PLEASE SEE ENTRY*** Signed by Judge Tanya Walton Pratt on 8/27/2010. (JD)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA MICHAEL BANDY, Plaintiff, v. INTERSTATE BRANDS CORPORATION, Defendant. ) ) ) ) ) ) ) ) )

No. 1:10-cv-1073-TWP-DML

Entry Concerning Selected Matters The court, having considered the above action and the matters which are pending, makes the following rulings: 1. The plaintiff's request to proceed in forma pauperis is granted.

2. The plaintiff's complaint sets forth his conclusory allegation that he suffered an adverse employment action in retaliation for having reported sexual harassment by his employer. a. Because the court has granted the plaintiff's request to proceed in forma pauperis, it also has a duty to dismiss the complaint if it fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B). This statute requires that the complaint be dismissed if it fails to state a claim upon which relief can be granted. Id. b. In order to survive dismissal for failure to state a claim, "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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly, 550 U.S. at 556). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]'-`that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)). "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555, 557).

c. Applying the foregoing standard, the complaint in this case fails to state a claim upon which relief can be granted because it lacks factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." d. Accordingly, the complaint is dismissed.

3. The dismissal of the complaint will not in this instance lead to the dismissal of the action at present. Benjamin v. United States, 833 F.2d 669, 671 (7th Cir. 1987). Instead, the plaintiff shall have through September 9, 2010, in which to file an amended complaint. 4. In filing an amended complaint, the plaintiff shall conform to the following guidelines: (a) the amended complaint shall comply with the requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure that pleadings contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . . ," (b) the amended complaint shall comply with the requirement of Rule 10 that the allegations in a complaint be made in numbered paragraphs, each of which should recite, as far as practicable, only a single set of circumstances, (c) the amended complaint must identify what legal injury he claims to have suffered and what persons are responsible for each such legal injury, and (d) the amended complaint shall contain a clear statement of the relief which is sought. 5. Proceedings other than as specified above are stayed until the amended complaint is filed or until the deadline for the filing of an amended complaint has passed. 6. If an amended complaint is filed the court will issue whatever order is warranted. If no amended complaint is filed as directed, the action will be dismissed consistent with the analysis in paragraph 2 of this Entry. IT IS SO ORDERED.

Date: 08/27/2010 Distribution: Michael Bandy 713 South Brandon Street Kokomo, IN 46901

________________________ Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana