Mares v. United States

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 2/26/2018: DENYING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DISMISSING CASE AS FRIVOLOUS pursuant to 28 U.S.C. § 1915(e)(2)(B); DENYING 4 Plaintif f's Motion for Change of Judge; 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 Gretchen M. Mares)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GRETCHEN M. MARES,
Plaintiff,

v.

Case No. 18-CV-274-JPS-JPS

UNITED STATES,
Defendant.

ORDER

On February 22, 2018, Plaintiff filed a pro se complaint alleging that
her civil rights were violated. (Docket #1). This matter comes before the
court on 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, 110910 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system,
a 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 a 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 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.
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. Vill. of N. Fond
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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 a pro se litigant’s 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)).
Plaintiff’s allegations are nonsensical, fantastical, and barely
coherent. Plaintiff alleges that various of her constitutional rights have been
violated by her “non-consensual participa[tion] in a discriminatory . . .
federal program/school[.]” (Docket #1 at 2). She does not explain what the
“program/school” is, but implies that Defendant is responsible for it (she
lists the defendant as “United States, c/o Gregory J. Hanstaad”). Id. at 1.
Plaintiff does state that the “program/school” started during her prior
employment at a local law firm, von Briesen & Roper, S.C. Id. at 2. She
asserts that, whatever this “program/school” is, it is a fraud. Id.
The “program/school” apparently causes a “continued and
imminent threat to the life, health and well-being” of Plaintiff. Id. at 3. The
directors of the “program/school” are alleged to “terroriz[e] and tortur[e]”
Plaintiff by various means. Id. She says that “the media and others are
required to watch on in her home, car, etc., including in her bedroom,
shower, toilette [sic] creating a degrading and highly stressful
environment[.]” Id. Plaintiff further alleges that “[i]t has been confirmed by
the press” that Defendant has for years been torturing her via a device
inserted somewhere in her ear. Id. at 4. The device allegedly has some
bacteria on it which causes various medical issues. Id. at 4-5. For relief,
Plaintiff wants an emergency injunction to end her participation in the
“program/school.” Id. at 6.
Plaintiff’s case may not proceed for two reasons. First, courts may
dismiss claims based on allegations that are “obviously and knowingly
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false.” Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002); see
also Edwards v. Snyder, 478 F.3d 827, 829–30 (7th Cir. 2007). Moreover, a suit
may be dismissed “because the facts alleged are so . . . unbelievable, even
though there has been no evidentiary hearing to determine their truth or
falsity.” Gladney, 302 F.3d at 774; see also Lee v. Clinton, 209 F.3d 1025 (7th
Cir. 2000); Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001); Lawler v. Marshall,
898 F.2d 1196, 1199 (6th Cir. 1990). “[N]o evidentiary hearing is required in
a prisoner’s case (or anyone else’s, for that matter) when the factual
allegations are incredible.” Gladney, 302 F.3d at 774 (internal citations
omitted). Plaintiff’s allegations are clearly of the incredible variety and are
beyond fantastic and delusional. See Denton v. Hernandez, 504 U.S. 25, 32–33
(1992). Consequently, this case must be dismissed as frivolous. Gladney, 302
F.3d at 775 (citing Okoro v. Bohman, 164 F.3d 1059, 1062–64 (7th Cir. 1999)
(“a frivolous suit does not engage the jurisdiction of the district court”).
This result should come as no surprise to Plaintiff. On October 28,
2016, she filed a similarly incoherent and delusional complaint which was
assigned to this branch of the Court. Gretchen M. Mares v. United States
[Mares I], 16-CV-1445-JPS (E.D. Wis.) (Docket #1). That action was
dismissed on the same grounds. Id. (Docket #6).1 Plaintiff appealed, but her
appeal was dismissed for failure to pay the docketing fee. Id. (Docket #20).
Plaintiff’s prior action supplies the second basis for dismissal of this
case: res judicata. The doctrine of res judicata, or claim preclusion, prohibits

The Court is “entitled to draw upon its familiarity with [Plaintiff’s] prior
meritless litigation . . . to conclude that h[er] complaint consisted only of ‘claims
describing fantastic or delusional scenarios, claims with which federal district
judges are all too familiar.’” Walton v. Walker, 364 F. App’x 256, 258 (7th Cir. 2010).
This concept, coupled with Plaintiff’s prior case, provides yet another reason why
the Court can reject Plaintiff’s ridiculous allegations.
1

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a party from re-litigating a case which had previously been dismissed with
prejudice. Czarniecki v. City of Chicago, 633 F.3d 545, 548 (7th Cir. 2011). Res
judicata “has three ingredients: a final decision in the first suit; a dispute
arising from the same transaction (identified by its ‘operative facts’); and
the same litigants (directly or through privity of interest).” Id. (quotation
omitted). All three are present here. Plaintiff’s prior case sued the same
defendants, for the same alleged constitutional violations, and was
dismissed with prejudice. Compare (Docket #1) with Mares I, (Docket #1, #6,
and #8). Plaintiff cannot simply re-file the same action after the first is
dismissed with prejudice, hoping for a different result the second time.
For both of these reasons, this action must be dismissed with
prejudice. The Court also notes that Plaintiff filed a “motion for change of
judge.” (Docket #4). There is no right, however, to a change of judge in the
federal court system. Plaintiff’s motion states that “Defendant has stated to
the Plaintiff [that] they have had extensive ‘ex parte’ communications with
the Judge’s Clerk and the Honorable J.P. Stadtmueller in [the previous
case].” Id. To the extent this is a request for recusal, it is baseless. See 28
U.S.C. § 455 (a judge must recuse himself from a proceeding “in which his
impartiality might reasonably be questioned”). The Court has had no such
communications with Defendant or any of its representatives regarding any
of her filings. In fact, the only ex parte communications the Court has had
regarding the case have been with Plaintiff herself. When her prior case was
dismissed, Plaintiff called the Court’s chambers multiple times to complain.
Plaintiff’s motion “for change of judge” must be denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby is DENIED;
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IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous;
IT IS FURTHER ORDERED that Plaintiff’s motion “for change of
judge” (Docket #4) be and the same is hereby DENIED; 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 26th day of February, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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