Bond v. Wisconsin Hospitality Group et al
ORDER DISMISSING CASE signed by Judge J.P. Stadtmueller on 1/31/2017. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Plaintiff's constitutional claim DISMISSED with prejudice. Plaintiff's state law claims DISMISSED without prejudice. Action DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. CERTIFIED that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless plaintiff offers bonafide arguments supporting appeal. (cc: all counsel, via mail to Brandy Bond) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-CV-114-JPS
WISCONSIN HOSPITALITY GROUP,
MICHAEL POMA, GRAND AVENUE
MALL LLC, and UNIVERSAL
The plaintiff filed a pro se complaint alleging that her civil rights were
violated. (Docket #1). This matter comes before the court on the plaintiff’s
petition to proceed in forma pauperis. (Docket #2). Notwithstanding the
payment of any filing fee, the Court must dismiss a complaint if it raises
claims that are “frivolous or malicious,” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
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, therefore, 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).
To state a cognizable claim under the federal notice pleading system,
the plaintiff is required to provide a “short and plain statement of the claim
showing that [she] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and her statement need only
“give the defendant fair notice of what the…claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of
a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555). 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
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by
factual allegations. Id. 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.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege
that: 1) she was deprived of a right secured by the Constitution or laws of the
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United States; and 2) the deprivation was visited upon her by a person or
persons acting under color of state law. Buchanan-Moore v. County of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446
U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
The plaintiff alleges that the defendant Michael Poma was a manager
of an Applebee’s restaurant. (Docket #1 at 3). She claims that he violated her
First Amendment right to freedom of speech by “having her arrested for
complaining after being abused by himself (Mike Poma) and his staff.” Id.
The plaintiff alleges that she was a former employee of Poma’s and
“question[ed] [his] hiring practices” while dining in his restaurant. Id. As a
result, her food was withheld, her “personal space was violated,” and she
was verbally assaulted and physically intimidated. Id. This triggered a PTSD
anxiety attack in the plaintiff that has caused her lasting mental distress. Id.
at 3-4. She further alleges that the defendants’ actions damaged her political
career and defamed her. Id.
The plaintiff’s constitutional claim fails because none of the defendants
are state actors, the second required element of a claim for constitutional
injury. See Buchanan-Moore, 570 F.3d at 827; Hallinan v. Fraternal Order of Police
of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009) (“In order to be
characterized as state action, ‘the deprivation [of constitutional rights] must
be caused by the exercise of some right or privilege created by the State or by
a rule of conduct imposed by the [S]tate or by a person for whom the State
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is responsible ... [and] the party charged with the deprivation must be a
person who may fairly be said to be a [S]tate actor.’”) (quoting Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). The defendants are all
private persons or companies and cannot be liable for violating the plaintiff’s
free speech rights.
The Court declines jurisdiction of the remaining claims and so does not
reach their merits. The claims for damage to the plaintiff’s political
aspirations and for defamation are, if valid, state law claims which fall
outside this Court’s original jurisdiction. See 28 U.S.C. §§ 1331, 1367(a) and
(c)(3); RWJ Management Co., Inc. v. BP Products North America, Inc., 672 F.3d
476, 478 (7th Cir. 2012) (“When federal claims drop out of the case, leaving
only state-law claims, the district court has broad discretion to decide
whether to keep the case or relinquish supplemental jurisdiction over the
state-law claims. A general presumption in favor of relinquishment
applies[.]”). Those claims will be dismissed without prejudice in the event the
plaintiff wishes to raise them in state court.
IT IS ORDERED that the plaintiff's motion for leave to proceed in
forma pauperis (Docket #2) be and the same is hereby is GRANTED;
IT IS FURTHER ORDERED that the plaintiff’s constitutional claim
be and the same is hereby DISMISSED with prejudice;
IT IS FURTHER ORDERED that the plaintiff’s state law claims, if
any, be and the same are hereby DISMISSED without prejudice;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim;
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THE COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the
plaintiff offers bonafide arguments supporting her appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of January, 2017.
BY THE COURT:
U.S. District Judge
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