TAYLOR v. GRAY et al
Entry Granting In Forma Pauperis Status, Screening and Dismissing Complaint, and Directing Plaintiff to Show Cause - 3 Motion for Leave to Proceed in forma pauperis is granted. The assessment of even an initial partial filing fee is not feasible a t this time. The Court has liberally construed plaintiff's complaint and finds that (1) there is no diversity jurisdiction, and (2) no viable federal civil rights or statutory claim is presented. The complaint is dismissed. Plaintiff shall have through August 28, 2017, to show cause why this action should not be dismissed. See entry for details. Signed by Judge Tanya Walton Pratt on 7/24/2017. (MEJ)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ARCHIE J. TAYLOR,
L. GRAY, C. MILLER, D. DAVIS, and
J. SHAVER Lt.,
Entry Granting In Forma Pauperis Status,
Screening and Dismissing Complaint,
and Directing Plaintiff to Show Cause
Plaintiff Archie Taylor is an Indiana prison inmate who on July 19, 2017, commenced this
action because some of his personal property is missing. He names four Indiana Department of
Corrections officers as defendants and seeks $405.60 in actual damages and $100 in unspecified
damages. He also seeks leave to proceed in forma pauperis. The complaint indicates plaintiff is
suing under state law, which for the reasons explained below will not be possible in federal court.
Construed as an action brought under 42 U.S.C. § 1983, it fails to state a claim upon which relief
may be granted.
I. In Forma Pauperis Status
Plaintiff’s request to proceed in forma pauperis dkt.  is granted. The assessment of even
an initial partial filing fee is not feasible at this time. Notwithstanding the foregoing ruling, plaintiff
owes the filing fee. “All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of the docket
fees; a litigant remains liable for them, and for other costs, although poverty may make collection
impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).
II. Screening Standard
Because plaintiff is a prisoner, the complaint is subject to the screening requirements of
28 U.S.C. § 1915A. This statute directs that the court shall dismiss a complaint or any claim within
a complaint which “(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” Id. To
satisfy the notice-pleading standard of Rule 8 of the Federal Rules of Civil Procedure, a complaint
must provide a “short and plain statement of the claim showing that the pleader is entitled to relief,”
which is sufficient to provide the defendant with “fair notice” of the claim and its basis. Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) and quoting Fed. R. Civ. P. 8(a)(2)); see also Wade v. Hopper, 993 F.2d 1246, 1249
(7th Cir. 1993) (noting that the main purpose of Rule 8 is rooted in fair notice: a complaint “must
be presented with intelligibility sufficient for a court or opposing party to understand whether a
valid claim is alleged and if so what it is.”) (quotation omitted)). The complaint “must actually
suggest that the plaintiff has a right to relief, by providing allegations that raise a right to relief
above the speculative level.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs.,
536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir.
In applying these legal standards, the Court construes pro se pleadings liberally and holds
pro se pleadings to less stringent standards than formal pleadings drafted by lawyers. Obriecht v.
Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
III. Plaintiff’s Contentions
In his complaint, Plaintiff writes that he has been an IDOC inmate since 2007, with most
of his incarceration time spent at the Indiana State Prison. During his time in prison he has acquired
a number of personal items from commissary purchases. These items include headphones, a
television set, a fan, shorts, and shoes. When he was transferred to the New Castle Correctional
Facility in 2015 for intense mental health treatment, none of the listed items were permitted
because of mental health treatment rules. However, in 2016 he was transferred to the Pendleton
Correctional Facility and still has not been reunited with his property. Plaintiff does not know
whether his missing property was stolen by other inmates, stolen by guards, seized by officials
because of some type of policy violation, or is still being held for him in an evidence locker. None
of the prison officials he has written to on numerous occasions have responded to him.
Action as a state law claim
Plaintiff checked the box on his form petition to indicate he is suing under state law. Suits
brought in federal court without a federal statutory or constitutional claim require diversity of
citizenship as well as $75,000 in controversy. 28 U.S.C. § 1332(a). Plaintiff has not plead the
citizenship of the defendants, but that is of no moment because the amount in controversy –
$505.60 – does not meet the statutory minimum and therefore there is no diversity jurisdiction. A
“party invoking federal jurisdiction bears the burden of demonstrating its existence.” See Hart v.
FedEx Ground Pkg. Sys. Inc., 457 F.3d 675, 679 (7th Cir. 2006).
Supplemental jurisdiction for plaintiff’s state law claim is not available because, as will be
discussed below, there is no viable federal claim presented in the complaint. See 42 U.S.C.
§ 1367(c)(3); Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); In re African-Am. Slave
Descendants Litig., 471 F.3d 754,757-58 (7th Cir. 2006).
If plaintiff indeed intended to bring his claims in state court, he has filed in the wrong court
and should seek redress in the appropriate state court. If he intended to proceed in federal court,
his complaint must be dismissed for lack of diversity jurisdiction. Nothing in this dismissal is
meant to preclude plaintiff from asserting these claims in a state court action.
Action as a civil rights claim
Liberally construing the complaint, as the Court is required to do, the Court cannot find a
viable action under 42 U.S.C. § 1983. At the outset, Section 1983 does not create its own cause of
action. Rather, it is the procedural mechanism by which constitutional violations are brought
against state actors. In other words, Section 1983 is not itself a source of substantive rights; instead
it is a means for vindicating federal rights elsewhere conferred. Ledford v. Sullivan, 105 F.3d 354,
356 (7th Cir. 1997) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
The only constitutional right that might be implicated by these facts is plaintiff’s right
under the Fourteenth Amendment to be free from deprivations of his property by state actors
without due process of law. To state a claim under the due process clause of the Fourteenth
Amendment, plaintiff must establish a deprivation of liberty or property without due process of
law; if the state provides an adequate remedy, Plaintiff has no civil rights claim. Hudson v. Palmer,
468 U.S. 517, 530-36 (1984) (availability of damages remedy in state claims court is an adequate,
post-deprivation remedy). “The unauthorized intentional deprivation of an individuals’ property
by a state employee does not deny the procedural due process guaranteed by the Fourteenth
Amendment so long as ‘a meaningful postdeprivation remedy for the loss is available.’” Higgason
v. Morton, 171 Fed. Appx. 509, 512 (7th Cir. 2006) (quoting Hudson, 468 U.S. at 533, and citing
Gable v. City of Chicago, 296 F.3d 531, 539-40 (7th Cir. 2002)). The Indiana Tort Claims Act,
Ind. Code § 34-13-3 et seq., provides an adequate postdeprivation remedy to redress claims like
plaintiff’s. Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001); Hossman v. Spradlin, 812 F.2d
1019, 1023 (7th Cir. 1987).
Accordingly, plaintiff has no Section 1983 claim under the facts he plead. The complaint
therefore fails to state a claim upon which relief may be granted and is dismissed.
28 U.S.C. § 1915A. As it concerned the diversity ruling above, this ruling in no way is intended to
prohibit plaintiff from pursuing his claims in a state court action.
V. Opportunity to Show Cause
The Court has liberally construed plaintiff’s complaint and finds that (1) there is no
diversity jurisdiction, and (2) no viable federal civil rights or statutory claim is presented. The
complaint is dismissed. Plaintiff shall have through August 28, 2017, to show cause why this
action should not be dismissed. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022 (7th
Cir. 2013) (“Without at least an opportunity to amend or to respond to an order to show cause, 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.”)
IT IS SO ORDERED.
Archie J. Taylor
Pendleton Correctional Facility
Electronic Service Participant – Court Only
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