Smith v. ITT Technical Institute

Filing 4

ORDER signed by Chief Judge William C Griesbach on 12/15/12 granting 2 Motion for Leave to Proceed in forma pauperis. The complaint is dismissed without prejudice. (cc: all counsel and Tanya Smith via US Mail) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TANYA RAE SMITH,
Plaintiff,
v.

Case No. 12-C-1254

ITT TECHNICAL INSTITUTE,
Defendant.

SCREENING ORDER

Plaintiff Tanya Smith, a resident of Wisconsin proceeding pro se, has brought an action under
state law. She has also filed a motion for leave to proceed in forma pauperis. Ordinarily, a plaintiff
must pay a statutory filing fee of $350 to bring suit in federal court. 28 U.S.C. § 1914. The federal in
forma pauperis statute, 28 U.S.C. § 1915, however, insures indigent litigants meaningful access to the
federal courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section 1915 authorizes an indigent
party to commence a federal court action, without costs and fees, upon submission of an affidavit
asserting an inability “to pay such fees or give security therefor” and stating “the nature of the action,
defense or appeal and the affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a).
Recognizing that some nonpaying litigants may attempt to abuse this privilege, however,
Congress also authorized the courts to dismiss such a case if the allegation of poverty is untrue, or if
satisfied that the action (1) is frivolous or malicious, (2) fails to state a claim on which relief may be
granted, or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). An action is considered frivolous if there is no arguable basis for relief either in law or
fact. Neitzke, 490 U.S. at 325.
In making such determinations, the Court must give the plaintiff's pro se allegations, however
inartfully pleaded, a liberal construction, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and must
accept well-pleaded factual allegations as true. But even pro se allegations must contain at least “some
minimum level of factual support.” White v. White, 886 F.2d 721, 724 (4th Cir. 1989). Persons should
not be allowed to proceed in forma pauperis if their claims are so lacking in specific facts that the
Court must invent factual scenarios that cannot be inferred from the pleadings. Smith-Bey v. Hosp.
Adm’r, 841 F.2d 751, 758 (7th Cir. 1988).
Plaintiff has filed the required affidavit of indigence. Review of that affidavit reveals that
Plaintiff is presently employed and has a monthly income of $2036 with little by way of savings. She
also indicates that she has approximately $3671 in shared expenses with her partner, who has a
monthly income of about $900. Based on Plaintiff’s affidavit of indigence, the Court is satisfied that
she meets the poverty requirements of 28 U.S.C. § 1915.
Turning now to Plaintiff’s complaint, she alleges that defendant employees misrepresented the
terms of her financial aid loan agreement. She states that the defendant’s loan representatives assured
her that she would be able to consolidate her loans and she would have a monthly payment of
approximately $250. However, she was not able to consolidate and her current monthly payment is
over $500. She indicates that the total of her loans is $107,272.66. She prays for relief in the form of
recision of the loan agreement and damages. Liberally construing Plaintiff’s complaint, she states a
potentially viable Wisconsin state law claim for misrepresentation. See Ollerman v. O’Rourke Co.,
Inc., 94 Wis. 2d 17, 24, 288 N.W.2d 95, 99 (1980).
2

It is not enough for Plaintiff to state a claim, however. She filed her lawsuit in federal court.
Federal courts have limited jurisdiction. A plaintiff must invoke the court’s subject matter jurisdiction
by including in her complaint “a short plain statement of the grounds for the court’s jurisdiction.” Fed.
R. Civ. P. 8(a)(1). Plaintiff has failed to do so. Her claim arises under state law, and thus this court
would have jurisdiction only if the parties are citizens of different states. 28 U.S.C. § 1332. The
complaint lists Green Bay, Wisconsin addresses for both parties. Based on the allegations of the
complaint, it appears the court lacks jurisdiction. For this reason, the complaint will be dismissed, but
the dismissal is without prejudice. If there are grounds for federal jurisdiction, plaintiff can so allege
and re-file her case in federal court. Alternatively, she can file her action in state court.
Accordingly, and for the reasons set forth above, the action is dismissed.
SO ORDERED this 15th

day of December, 2012.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

3