Owen v. Walker et al

Filing 4

ORDER signed by Judge Pamela Pepper on 12/23/2016 GRANTING 2 Plaintiff's motion for leave to proceed without prepayment of the filing fee; DISMISSING the complaint without prejudice; and GRANTING leave to file an amended complaint by 1/20/2017. (cc: all counsel; by US Mail on 12/27/2016 to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ISAAC OWEN, JR.,
Plaintiff,
v.

Case No. 16-cv-898-pp

SCOTT WALKER, ET AL.,
Defendants.
______________________________________________________________________________
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS (DKT. NO. 2), DISMISSING COMPLAINT WITHOUT PREJUDICE,
AND GRANTING LEAVE TO FILE AN AMENDED COMPLAINT BY JANUARY
20, 2017
______________________________________________________________________________
On July 11, 2016, the plaintiff, who is proceeding without a lawyer, filed
his complaint. Dkt. No. 1. Along with the complaint, the plaintiff filed a motion
asking the court to allow him to proceed with his case without paying the filing
fee. Dkt. No. 2. For the reasons explained below, the grants the plaintiff’s
motion to proceed in forma pauperis, dismisses the complaint without prejudice
under Federal Rule of Civil Procedure 8, and grants the plaintiff leave to file an
amended complaint that provides a short and plain statement of his claims.
In the plaintiff’s affidavit in support of his motion to proceed in forma
pauperis, he indicates that he is not employed, not married, has two
dependents (ages six and one), and has no monthly income. Dkt. No. 2 at 1-2.
He states that his household expenses total $460 per month. Id. at 3. He does
not own a car or a home, and he has no other assets. Id.at 3-4. The plaintiff

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has demonstrated that he cannot pay the full amount of the $350 filing fee and
$50 administrative fee.
Section 1915(e)(2)(B) requires a court to dismiss a case at any time if the
court determines that it “(i) is frivolous or malicious; (ii) fails to state a claim
upon which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” For this reason, district courts
“screen” complaints filed by self-represented plaintiffs, to determine whether
the complaint must be dismissed under these standards. A claim is legally
frivolous when it lacks an arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
The court may dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual contentions are clearly
baseless. Neitzke, 490 U.S. at 327. “Malicious,” although sometimes treated as
a synonym for “frivolous,” “is more usefully construed as intended to harass.”
Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations
omitted). Relatedly, in order to authorize a litigant to proceed in forma pauperis,
the court must make two determinations: whether the litigant is unable to pay
the costs of commencing the action, and whether the action is frivolous or
malicious. 28 U.S.C. §§1915(a) and (d).
To state a cognizable claim for relief under the federal notice pleading
system, the plaintiff shall provide a “short and plain statement of the claim
showing that [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The plaintiff need
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not plead specific facts and his statement need only “give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on its face.” Id. (quoting
Twombly, 550 U.S. at 570). “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). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
If there are well-pleaded factual allegations, the court must, second, “assume
their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id.
The plaintiff’s complaint spans ninety-two typed pages. It generally
alleges that the plaintiff had formed a health care business, Graceful Care
Services, LLC, to provide “services that help assist eligible consumers with
daily living activities.” Dkt. No. 1 at 40, ¶125. The defendant alleges that his
business was unsuccessful because, after an on-site visit to his business, the
plaintiff was denied the necessary licenses to provide health care services and
participate in Medicaid programs. Id. at 41, ¶127; 79. According to the plaintiff,
defendants Valerie Sobotta, Amanda Slater, Joann Kowalski, and Angela Mack
caused his “business to be unconstitutionally shut-down and
unconstitutionally seized my property, and the unconstitutional actions caused
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the State of Wisconsin not to associate with me, and Governor Scott Walker
and Kitty Rhoades . . . failed to prevent the injury from occurring.” Id. at 83. He
alleges that the defendants denied the plaintiff the necessary licenses based on
his race. Id. at 42, ¶130; 45-46, ¶142; 47, ¶148. He further alleges that the
defendant’s conduct violated various federal and state constitutional
provisions, statutes and regulations. He attempts to state claims under Article
IV, §2 of the federal Constitution; the Sherman Act; 42 U.S.C. §§1981, 1982,
1983 and 1986; and 18 U.S.C. §§641 and 654, as well as alleging state-law
claims for extortion, theft by fraud, negligence, public misconduct, unjust
enrichment, mail fraud, blackmail and others.
The plaintiff’s claim appears to be that certain of the defendants refused
to grant his business the necessary licenses on the basis of the plaintiff’s race.
The court cannot allow the plaintiff to proceed on his complaint in its current
form, however, because the complaint “is a confusing morass of legal theory
and limited factual assertions. . . . .” Griffin v. Milwaukee Cnty., 369 F. App’x
741, 743 (7th Cir. 2020).
Fed. R. Civ. P. 8 provides that a pleading, such as a complaint, must
contain “a short and plain statement of the claim showing that the [plaintiff] is
entitled to relief . . . .” The plaintiff’s complaint is excessively long (ninety-two
pages and almost 300 paragraphs), lacks factual detail and specificity
regarding which individual defendant is responsible for what alleged conduct,
and cites numerous federal and state constitutional and statutory provisions
without explaining how the individual defendants’ conduct violated the law.
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The court cannot determine whether there are any potential claims against any
of the individual defendants.
Even though “[a] district court normally cannot dismiss a complaint
merely because it is repetitious or includes irrelevant material,” id. (citing
United States ex rel. Garst v. Lockheed–Martin Corp. 328 F.3d 374, 378 (7th
Cir. 2003)), “length may make a complaint unintelligible, by scattering and
concealing in a morass of irrelevancies the few allegations that matter,” id.
(alteration omitted) (citation omitted). In these circumstances, the Seventh
Circuit has explained that “it is simpler to dismiss an unintelligible complaint
with leave to file a new one so that a plaintiff’s allegations are contained in only
one document rather than” directing the plaintiff to file a more definite
statement. Id. (citing Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir.
2001)).
Accordingly, the court will dismiss the plaintiff’s complaint without
prejudice for failure to comply with Rule 8, and will grant the plaintiff leave to
file an amended complaint that provides a short and plain statement of (1) the
facts surrounding the defendants’ decision to decline to issue the plaintiff the
necessary license to operate his business, (2) how each defendant participated
in that decision, and (3) how each defendant allegedly violated the plaintiff’s
rights. The court will grant the plaintiff’s motion to proceed in forma pauperis.
The court ORDERS that the plaintiff’s complaint is DISMISSED
WITHOUT PREJUDICE. The court further ORDERS that the plaintiff’s motion
to proceed in forma pauperis (Dkt. No. 2) is GRANTED. The court further
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ORDERS that if the plaintiff wishes to file an amended complaint that complies
with the requirements of Fed. R. Civ. P. 8, he must file that complaint no later
than the end of the day on Friday, January 20, 2017.
Dated in Milwaukee, Wisconsin this 23rd day of December, 2016.

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