Moorer v. Dechert LLP et al

Filing 6

ORDER signed by Judge J P Stadtmueller on 11/25/09 granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis and dismissing this action. See Order. (cc: Plaintiff, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
E R N E S T LEE ROY MOORER, P l a i n t if f , v. D E C H E R T , LLP, GARY GLOJEK, WILLIAM GRUBER, LIZ SANTIAGO, LAMANICK, PIRTLE, MARTNES, A S T R A Z E N E C A , ELI LILLY & CO, and W IS C O N S IN DEPARTMENT OF VETERANS AFFAIRS, D e fe n d a n ts . C a s e No. 09-CV-1050

ORDER
O n November 9, 2009, the plaintiff, Ernest Lee Roy Moorer, filed a pro se civil rig h ts complaint under 42 U.S.C. § 1983. This matter comes before the court on the p la in tiff's petition to proceed in forma pauperis. Section 1915 is meant to ensure indigent litigants meaningful access to fe d e r a l courts. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Under § 1915, an in d ig e n t party may commence a federal court action, without paying required costs a n d fees, upon submission of an affidavit asserting inability "to pay such fees or give s e c u rity therefor" and stating "the nature of the action, defense or appeal and the a ffia n t's belief that the person is entitled to redress." 28 U.S.C. § 1915(a)(1). A c c e s s is not unlimited however. Congress recognized that some nonpaying

litig a n ts would try to abuse the privilege. Accordingly, it authorized the courts to d is m is s a claim filed in forma pauperis if the action is frivolous or malicious, fails to

s ta te a claim on which relief may be granted or seeks money damages from a d e fen d a n t who is immune from such relief. 28 U.S.C. § 1915(e)(2). T h e plaintiff has submitted an affidavit of indigence indicating that he is unable to pay the costs of commencing this action. From this, the court concludes that the p la in tiff meets the poverty requirements of 28 U.S.C.§ 1915(a). Another question is whether the complaint is frivolous. A complaint is frivolous if it has no arguable basis in law or fact or if the petitioner is unable to make any ra tio n a l argument in law or fact that would entitle him to relief. Denton v. Hernandez, 5 0 4 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. The court has the authority to d is m is s any claim based on an indisputably meritless legal theory and any claim w h o s e factual contentions are clearly baseless. In this case, the complaint is not frivo lo u s and, therefore, the petitioner's motion to proceed in forma pauperis will be g r a n te d . N e ve rth e le s s , the complaint in this case will be dismissed without prejudice. F e d e ra l Rule of Civil Procedure 8(a)(2) provides that a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to re lie f." This statement must simply "give the defendant fair notice of what the p la in tiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N .A ., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 [1957]). In this case, the complaint fails to give the defendants notice of the claim and the g ro u n d s upon which it rests. The complaint apparently involves a number of

-2-

in c id e n c e s which are not related. It is rambling and incoherent. "A district judge has the authority to dismiss a complaint because it is confusing, though only in a rare c a s e would he be justified in dismissing it on this ground with prejudice, thus barring the filing of an amended complaint." Fidelity Nat'l Title Ins. Co. v. Intercounty Nat'l T itle Ins. Co., 412 F.3d 745, 750 (7th Cir. Ill. 2005) (internal citations omitted). A lth o u g h a confusing pleading is not ordinarily a fatal defect, "it can become one if d e s p ite repeated attempts the plaintiff is unable to draft an intelligible complaint." Id. (c itin g United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 376, 3 7 8 -7 9 [7th Cir. 2003]; Michaelis v. Nebraska State Bar Ass'n, 717 F.2d 437 [8th Cir. 1 9 8 3 ] [per curiam]). The court makes several observations, however. Federal courts are courts o f limited jurisdiction and may adjudicate a case only if there is both constitutional a n d statutory authority for federal jurisdiction. See Erwin Chemerinsky, Federal J u ris d ic tio n at 248 (2nd ed. 1994). A person seeking to invoke federal jurisdiction h a s the burden of proof to demonstrate at the outset that the federal court has the a u th o rity to hear the case. See McNutt v. General Motors Acceptance Corp. of In d ia n a , 298 U.S. 178, 182-89 (1936); see also, Moore v. General Motors Pension P la n s , 91 F.3d 848, 850 (7th Cir. 1996). The presence of federal question jurisdiction is determined by the plaintiff's c o m p la in t. A district court's federal question jurisdiction extends over "only those c a s e s in which a well-pleaded complaint establishes either that federal law creates

-3-

th e cause of action or that the plaintiff's right necessarily depends on resolution of a substantial question of federal law," in that "federal law is a necessary element of o n e of the well-pleaded . . . claims." Christianson v. Colt Industries Operating Corp., 4 8 6 U.S. 800, 808 (1988) (citations omitted). T h e plaintiff filed this action as one under 42 U.S.C. § 1983. To state a claim fo r relief under § 1983, a plaintiff must allege: (1) that he was deprived of a right s e c u re d by the Constitution or laws of the United States; and (2) that the deprivation w a s visited upon him by a person acting under color of state law. Gomez v. Toledo, 4 4 6 U.S. 635, 640 (1980). It is unclear to the court whether any of the defendants w e re acting under the color of state law. Diversity of citizenship can provide a basis for federal court jurisdiction. S e c tio n 1332 of Title 28 of the United States Code provides in relevant part: (a ) ju ri s d ic tio n c o n tr o v e r s y e xc lu s iv e of th e district courts shall have original of all civil cases where the matter in exceeds the sum or value of $75,000, interest and costs, and is between ­ (1 ) c itiz e n s of different States;

B a s e d on a review of the plaintiff's complaint, it does not appear that there is d ive rs ity of citizenship of the parties as required under 28 U.S.C. § 1332. A c c o rd in g ly , in light of the foregoing, the plaintiff's request to proceed in forma p a u p e r is in this action will be granted and this action will be dismissed without p r e ju d ic e .

-4-

ORDER N O W , THEREFORE, IT IS ORDERED that the plaintiff's request to proceed in forma pauperis (Docket #2) be and the same is hereby GRANTED. IT IS FURTHER ORDERED that this action be and the same is hereby D IS M IS S E D . T h e Clerk is directed to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 25th day of November, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

-5-