Smith v. Blohm et al

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 4/17/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DISMISSING action pursuant to 28 U.S.C. § 1915(e)(2)(B) for Plaintiff's failure to state a claim; and CERTIFYING 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 her appeal. (cc: all counsel, via mail to Laura Smith) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LAURA SMITH,
Plaintiff,

Case No. 17-CV-475-JPS

v.
NATE BLOHM, JAQUITA PEEL, and
MILWAUKEE CHILDREN’S
COMMUNITY SERVICES,

ORDER

Defendants.
The plaintiff Laura Smith (“Smith”) filed a pro se complaint alleging
that certain of her rights were violated. (Docket #1). This matter comes before
the court on Smith’s motion for leave to proceed in forma pauperis. (Docket
#2). The Court will grant Smith’s motion in light of her representations
therein about her income and expenses. Id. Notwithstanding the payment of
any filing fee, however, 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 Atl. 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
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.
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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
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
(1976)).
Smith alleges that Nate Blohm (“Blohm”) “violated me and my
children[’s] rights and put me and my kids in harm’s way.” (Docket #1 at 2).
She further alleges that “Jaquita Peel [(“Peel”)] made false accusations against
me and tried to take my visitation visits away because she discriminated
against me and my children.” Id. As to both of those defendants, Smith states
that “[t]hey said foul things about me and my kids, [and] they are
disrespectful and my kids are not safe in someone else[’s] care.” Id. “This
took place at the office,” says Smith, “and they don’t do their job because
they don’t like me at all.” Id.
It is not clear to whom Smith’s remaining allegations are directed; she
does not connect them to Blohm, Peel, or Milwaukee Children’s Community
Services (“MCCS”). Id. at 3. Nevertheless, Smith goes on to state that “they”
took her children away from her and that she believes her children are not
safe. Id. at 3. Smith says this lawsuit is brought pursuant to federal law, but
cites no such laws or constitutional provisions which the defendants may
have violated. See generally id. For relief, Smith requests money damages for
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“distress,” that the individual defendants be fired from their jobs, and that
her children be returned to her care. Id. at 4.
Smith fails to state any viable claims for relief for two reasons. First,
she states only that her “rights” were violated, without connecting her
complaint to any federal law. Assuming Smith meant to reference her
constitutional rights, those may only be enforced as against state actors.
Buchanan-Moore, 570 F.3d at 827. Smith’s only indication of government
involvement is an assertion that MCCS is somehow connected to the “child
protection service.” (Docket #1 at 2). However, the address she provides is
not of a state agency, but rather the Milwaukee 76th Street Community
Services building, operated by Children’s Hospital of Wisconsin. See
Children’s

Hospital

of

Wisconsin,

Locations,

available

at:

http://www.chw.org/location-directory/locations/milwaukee-76th-street-co
mmunity-services/. This is a private organization which is not subject to
Section 1983 liability. If Blohm and Peel work for MCCS, then they too would
be immune from Smith’s instant suit.
Second, even assuming the defendants were state actors, Smith’s
claims are not grounded in federal law. Again, Smith offers no direction on
the source of her “rights” which were allegedly violated. Her allegations do
not support any constitutional claims; vague references to “disrespect,”
“discrimination,” and “false accusations” do not implicate any protections
provided by the Bill of Rights. Rather, they at best rest on a cause of action
for the infliction of emotional distress, which is a state law claim that must
be brought in state court. In the same vein, the underlying theme of Smith’s
complaint is that her children were taken from her by the state due to some
alleged problem with Smith’s parenting, and the children are now living in
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a different home. If Smith desires to have her children returned to her, she
must raise the matter in a Wisconsin family court. This Court, a federal court,
has no power to grant her that relief.
In light of the foregoing, Smith’s complaint must be dismissed.
Accordingly,
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 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;
and
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 17th day of April, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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