Carson v. Haider et al
Filing
3
ORDER signed by Judge J.P. Stadtmueller on 3/6/2017 ORDERING that plaintiff's complaint (Docket #1) be STRICKEN; plaintiff to file amended complaint by 3/27/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. (cc: all counsel, via mail to Michael Carson) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL CARSON,
Plaintiff,
Case No. 17-CV-302-JPS
v.
JOE HAIDER and 20TH STREET
PROPERTIES,
ORDER
Defendants.
The plaintiff has filed a pro se complaint alleging racial discrimination.
(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 [he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to 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 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 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). 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).
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. 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 (1976)).
Page 2 of 5
The plaintiff alleges that the defendants began discriminating against
him on the basis of race in May 2016. (Docket #1 at 2). He claims that the
defendant Joe Haider (“Haider”), his landlord, made statements indicating
that he did not want to rent to black people, but instead preferred renting to
young, white college students. Id. Haider “slowly forc[ed] black residents out
completely.” Id. The plaintiff couches his discrimination alleged in the federal
Fair Housing Act. Id. at 3; 42 U.S.C. § 3601 et seq.
The Court has liberally construed his allegations, but nevertheless
finds that the plaintiff’s complaint fails to raise a viable claim for relief. His
explanation of the defendants’ discriminatory practices are generic. Other
than vaguely referencing Haider’s allegedly improper practices, the plaintiff
gives no indication of what Haider did to the plaintiff himself, when it
occurred, and what injury it caused. Though the bar for pleading facts is not
high, it is also not illusory; the plaintiff has not pleaded much more than
“labels and conclusions” which are insufficient to state a valid cause of action.
Iqbal, 556 U.S. at 678.
The Court must strike the current complaint, but it will afford the
plaintiff an opportunity to submit an amended complaint correcting the
above-described defects. If the plaintiff wants to proceed, he must file an
amended complaint on or before March 27, 2017. Failure to file an amended
complaint within this time period may result in dismissal of this action. The
plaintiff is advised that the amended complaint must bear the docket number
assigned to this case and must be labeled “Amended Complaint.” The
plaintiff is further advised that a successful complaint alleges “the who, what,
when, where, and how: the first paragraph of any newspaper story.” See
DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
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The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v. Bd.
of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that, in such instances, the
“prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted); see also Pintado v. MiamiDade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general
matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006)). If an amended complaint is received, it will be screened
pursuant to 28 U.S.C. § 1915(e)(2)(B).
On a final note, the Court will grant the plaintiff’s motion to proceed
in forma pauperis. (Docket #2). The privilege to proceed without payment of
costs and fees “is reserved to the many truly impoverished litigants
who…would remain without legal remedy if such privilege were not
afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th
Cir. 1972). The sworn statements in the plaintiff’s motion show that he is
unemployed and that his expenses match his income. (Docket #2). The
plaintiff therefore qualifies as indigent and may proceed without prepaying
the filing fee.
Accordingly,
IT IS ORDERED that the plaintiff’s complaint (Docket #1) be and the
same is hereby STRICKEN;
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IT IS FURTHER ORDERED that the plaintiff shall file an amended
complaint on or before March 27, 2017; and
IT IS FURTHER ORDERED that the plaintiff’s motion to proceed in
forma pauperis (Docket #2) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 6th day of March, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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