Casey et al v. Sciascia et al

Filing 6

ORDER signed by Chief Judge Pamela Pepper on 11/13/2023. 2 Plaintiff Nicole Casey's motion for leave to proceed without prepaying filing fee DENIED; by end of day 12/15/2023, plaintiffs to pay $402 filing fee or file amended motion for le ave to proceed without prepaying filing fee, failure to comply with deadline will result in dismissal of case. By end of day 12/15/2023, lawyer representing Zoey Casey must file notice of appearance, failure to comply with deadline will result in dismissal of plaintiff Zoe Casey. (cc: all counsel and mailed to Nicole, Annette and Zoe Casey)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

NICOLE M. CASEY, ANNETTE M. CASEY,
and ZOEY L. CASEY, a minor
Plaintiffs,
Case No. 22-cv-1026-pp
v.
JOSEPH SCIASCIA, TERI STROHSHEIN,
GARY PROBST, JENNIFER SMITH,
WAUPUN POLICE DEPARTMENT,
MARYANN SCHACHT and EMILY BAUER,
Defendants.

ORDER DENYING MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYING FILING FEE (DKT. NO. 2) AND REQUIRING PLAINTIFFS TO
OBTAIN COUNSEL FOR ZOEY CASEY

On September 6, 2022, the plaintiffs—without the assistance of
counsel—filed a complaint, dkt. no. 1, and a motion for leave to proceed
without prepaying the filing fee, dkt. no. 2.
The complaint lists three plaintiffs: Nicole Casey, Annette Casey and Zoey
Casey. Dkt. No. 1 at 1. The factual allegations in the complaint are written from
Nicole Casey’s point of view. Id. at 3-7. The complaint explains that Nicole
Casey is the mother of Zoey Casey, who is a minor. Id. at 5, 10. Under Zoey
Casey’s signature block, the complaint states “mother signed on behalf of
minor.” Id. at 10.

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As a minor, Zoey Casey cannot represent herself in federal court.1 See
Fed. R. Civ. P. 17(b)(1) (stating that an individual’s capacity to sue in federal
court is dictated by the law of the individual’s domicile); Wis. Stat.
§803.01(3)(a) (stating that a minor must “appear by an attorney, by the
guardian of the estate of the party who may appear by attorney, or by a
guardian ad litem who may appear by an attorney”); see also Cheung v. Youth
Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (7th Cir.1990) (stating that
“[t]he choice to appear pro se is not a true choice for minors who under state
law . . . cannot determine their own legal actions” so, “[t]here is thus no
individual choice to proceed pro se for courts to respect”). It appears that Nicole
Casey is attempting to represent her minor daughter Zoey. Nicole Casey has
not stated that she is an attorney; as a non-lawyer, Nicole cannot represent
Zoey. See Foster v. Bd. of Educ. of City of Chi., 611 F. Appx. 874, 877 (7th Cir.
2015) (noting that the Seventh Circuit has “repeatedly held that the rule
prohibiting a nonlawyer from representing another person extends to a parent
attempting to represent her minor child pro se.”).
The court will give the plaintiffs approximately thirty days to find a
lawyer to represent Zoey. If, by the deadline set below, a lawyer has not filed a
notice of appearance on behalf of Zoey Casey, the court must dismiss Zoey as a

The complaint explains that Annette Casey is the mother of Nicole Casey.
Dkt. No. 1 at 7. Because Nicole and Annette Casey are adults, they may
represent themselves if they elect to do so. 28 U.S.C. §1654 (“In all courts of
the United States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct cases therein.”).
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plaintiff. Id. (affirming the district court dismissing without prejudice a minor’s
claims because the minor was not properly represented).
To allow a plaintiff to proceed without prepaying the filing fee, the court
first must decide whether the plaintiff can pay the fee; if not, the court must
determine whether the lawsuit is frivolous. 28 U.S.C. §§1915(a) and
1915(e)(2)(B)(i). To qualify to proceed without prepaying the filing fee, a plaintiff
must fully disclose their financial condition truthfully under penalty of perjury.
See 28 U.S.C. §1915(a)(1) (requiring the person seeking to proceed without
prepaying the fee to file “an affidavit that includes a statement of all assets
[they] possess[]”).
Nicole Casey is the only plaintiff who filed an affidavit regarding her
financial circumstances. Dkt. No. 2. The form states that Nicole does not have
a monthly salary, but that she is married and that her spouse has a monthly
salary of “$5,600+/-.” Id. at 1-2. Nicole reports that she has four dependent
children. Id. at 1. She lists “$4,813.20+/-” in monthly expenses. Id. at 2-3. She
states that she owns a 2017 GMC Acadia worth approximately $13,000 and a
2005 Chevy worth approximately $2,000. Id. at 3. She reports owning a home
worth approximately $189,000 but does not list the amount of equity in the
home. Id. Finally, Nicole reports that she has $1,600 in cash on hand or in an
account. Id.
Based on the facts in Nicole Casey’s affidavit, the court concludes that
she has the ability to pay the filing fee. Her monthly income exceeds her
monthly expenses by approximately $750. Id. at 1-2. She reports having
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$1,600 in cash on hand or in an account. Id. The court recognizes that due to
its delay in ruling on the motion to proceed without prepaying the filing fee,
Nicole’s financial circumstances may have changed since she filed her motion
in September 2022. The court will deny the motion but will give Nicole the
opportunity to file an amended motion in the event that her circumstances
have changed; if Nicole does not file an amended motion, the plaintiffs must
pay the $402 filing fee before the court will take any further action in the case.2
The court DENIES WITHOUT PREJUDICE plaintiff Nicole Casey’s
motion for leave to proceed without paying the filing fee. Dkt. No. 2. The court
ORDERS that by the end of the day on December 15, 2023, the plaintiffs
must either file an amended motion for leave to proceed without prepaying the
filing fee or pay the $402 filing fee. The plaintiffs must either file the amended
motion or pay the $402 filing fee in time for the court to receive it by the end of
the day on December 15, 2023. If the court does not receive an amended
motion or the full filing fee (or a written explanation of why the plaintiffs cannot
pay it) by the end of the day on December 15, 2023, the court will dismiss the
case on the following business day without further notice or hearing for failure
to pay the required filing fee.

Even if the court grants a motion for leave to proceed without prepaying the
filing fee, a plaintiff still is responsible for paying the filing fee over time. See
Rosas v. Roman Catholic Archdiocese of Chi., 748 F. App’x 64, 65 (7th Cir.
2019) (“Under 28 U.S.C. §1915(a), a district court may allow a litigant to
proceed ‘without prepayment of fees,’ but not without ever paying fees.”). When
a court grants a motion allowing a person to proceed without prepaying the
filing fee, it means only that the person does not have to pay the full filing fee
up front; the person still owes the filing fee.
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The court ORDERS that by the end of the day on December 15, 2023,
the plaintiffs must retain a lawyer to represent Zoey Casey and that lawyer
must file a notice of appearance. If the court does not receive a notice of
appearance by a licensed lawyer representing Zoey Casey by the end of the day
on December 15, 2023, the court will dismiss Zoey Casey as a plaintiff on the
following business day without further notice or hearing.
Dated in Milwaukee, Wisconsin this 13th day of November, 2023.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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