Ferguson v. Nissen Staffing Continuum Inc et al
Filing
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ORDER signed by Judge Pamela Pepper on 2/23/2017 GRANTING 2 Plaintiff's motion to proceed without paying the filing fee and SCREENING 1 the Complaint. (cc: all counsel; by US Mail to plaintiff) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TYRONE FERGUSON, SR,
Plaintiff,
v.
Case No. 17-cv-198-pp
NISSEN STAFFING CONTINUUM, INC., and
BUYSEASONS,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS (DKT. NO. 2) AND SCREENING COMPLAINT
______________________________________________________________________________
The plaintiff, who is proceeding without a lawyer, filed this complaint on
February 14, 2017. Dkt. No. 1. Along with the complaint, the plaintiff filed two
notice of right to sue letters from the EEOC dated December 13, 2016, and a
motion asking the court to allow him to proceed without paying the filing fee.
Dkt. No. 2. The court will grant the plaintiff’s motion to proceed in forma
pauperis and will allow his claims to proceed.
I.
SCREENING OF THE PLAINTIFF’S COMPLAINT
The court may allow a litigant to proceed without prepayment of the
filing fees if two conditions are met: (1) the litigant is unable to pay the filing
fee; and (2) the case is not frivolous nor malicious, does not fail to state a claim
on which relief may be granted, and does not seek monetary relief against a
defendant that is immune from such relief. 28 U.S.C. §§1915(a) and (e)(2).
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In his request to proceed without paying the filing fee, the plaintiff states
that he has a job, that he is not married, and that he financially supports one
minor dependent. Dkt. No. 2, at 1. He receives $2,240 per month in income
from his employer Veolia. Id. at 2. He owns a car that he values at $4,500. Id.
at 3. He lists no additional property or assets. The plaintiff states that his total
monthly expenses include $615 in rent, $200 in child support, and $1,680 in
other household expenses. Id. Based on the information contained in the
plaintiff’s application, the court concludes that the plaintiff is unable to pay the
filing fees and costs associated with this action, so the plaintiff has met the
financial requirements of Section 1915(a).
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.” Thus, district courts “screen”
complaints filed by self-represented plaintiffs who request relief from the filing
fee, to determine whether they must dismiss complaints under these
standards.
A complaint is frivolous, for purposes of §1915(e)(2)(B)(i), if “it lacks an
arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31
(1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The court may
dismiss a case as frivolous if it is based on an “indisputably meritless legal
theory” or where the factual contentions are “clearly baseless.” Id. at 32
(quoting Neitzke, 490 U.S. at 327). The standards for deciding whether to
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dismiss a case for failure to state a claim under §1915(e)(2)(B)(ii) are the same
as those for reviewing claims under Federal Rule of Civil Procedure 12(b)(6).
DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). To survive dismissal,
the complaint must contain enough “[f]actual allegations . . . to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Although a complaint need not contain “detailed factual allegations,” a
complaint “that offers ‘labels and conclusions’ or ‘a 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). “In evaluating whether a plaintiff’s
complaint fails to state a claim, a court must take the plaintiff’s factual
allegations as true and draw all reasonable inferences in his favor.” DeWalt,
224 F.3d at 612. The court must liberally construe a pro se plaintiff’s
allegations, no matter how “inartfully pleaded.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Construing the complaint liberally, the court finds that the plaintiff’s
complaint contains sufficient factual allegations to state employment
discrimination claims against both defendants on the basis of race and age
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq. See
Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (to state a race
discrimination claim, “‘I was turned down for a job because of my race’ is all a
complaint has to say.”). For that reason, the court finds that the complaint is
not frivolous, and will grant the plaintiff’s motion to proceed in forma pauperis.
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II.
CONCLUSION
The court GRANTS the plaintiff’s motion to proceed in forma pauperis.
The court ORDERS that, pursuant to 28 U.S.C. §1915(d) and Federal Rule of
Civil Procedure 4, the United States Marshals Service shall serve a copy of the
complaint, a waiver of service form and/or the summons, and this order on
defendants Nissan Staffing Continuum, Inc. and Buyseasons. Even though the
court has permitted the plaintiff to proceed in forma pauperis in this case, the
plaintiff remains responsible for the cost of serving the complaint on the
defendants. The court advises the plaintiff that Congress requires the U.S.
Marshals Service to charge for making or attempting to make such service. 28
U.S.C. §1921. The current fee for waiver-of-service packages is $8.00 per item.
The full fee schedule appears in Revision to United States Marshals Service
Fees for Services. See 28 C.F.R. §0.114(a)(2) and (a)(3). Although Congress
requires the court to order service by the U.S. Marshals Service precisely
because in forma pauperis plaintiffs are indigent, it has not made any provision
for either the court or by the U.S. Marshals Service to waive this cost.
Dated in Milwaukee, Wisconsin this 23rd day of February, 2017.
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