Stephenson v. Childrens Hospital of Wisconsin Inc
ORDER signed by Judge J P Stadtmueller on 11/13/2023: DENYING as moot 2 and 5 Plaintiff's Motions for Leave to Proceed Without Prepayment of the Filing Fee and DISMISSING CASE without prejudice for lack of subject matter jurisdiction. See Order. (cc: all counsel, via mail to Grace C Stephenson)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GRACE C. STEPHENSON,
Case No. 23-CV-1446-JPS
CHILDREN’S HOSPITAL OF
WISCONSIN INC. a/k/a CHILDREN’S
HOSPITAL OF WISCONSIN,
On October 30, 2023, pro se Plaintiff Grace C. Stephenson
(“Plaintiff”) sued Defendant Children’s Hospital of Wisconsin Inc. a/k/a
Children’s Hospital of Wisconsin (“Defendant” or “Children’s Hospital”)
ECF Nos. 1 (complaint), 4 (amended complaint).1 Plaintiff also filed a
motion, and later an amended motion, for leave to proceed in forma
pauperis. ECF Nos. 2, 5.2 That amended motion, and the screening of
Plaintiff’s amended pro se complaint, are now before the Court. For the
reasons discussed herein, the Court will dismiss the case for lack of subject
matter jurisdiction and will deny the amended motion for leave to proceed
in forma pauperis as moot.
The amended complaint, ECF No. 4, appears to be largely identical to the
original complaint, ECF No. 1.
The Court will deny the original motion for leave to proceed in forma
pauperis, ECF No. 2, as moot in light of the filing of the amended motion, ECF
MOTION TO PROCEED IN FORMA PAUPERIS
On the question of indigence, although Plaintiff need not show that
she is totally destitute, Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980), the
privilege of proceeding in forma pauperis “is reserved to the many truly
impoverished litigants who, within the District Court’s sound discretion,
would remain without legal remedy if such privilege were not afforded to
them,” Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
In her amended motion, Plaintiff avers that she is unemployed and
unmarried. ECF No. 5 at 1. With respect to dependents, she refers only to
her deceased daughter, Christina H. Johnson (“Christina”), who suffered
from “[c]ognitive [d]isab[ilities]” and was a “[h]eart [p]atient” at Children’s
Hospital. Id. Plaintiff attests that social security is her sole income, in the
amount of $1,662.88 per month. Id. at 2. She pays roughly $400 per month
in rent, roughly $360 per month in car payment on her 2013 Nissan Rogue
(the value of which she estimates is $3,500), $100 per month in credit card
payment, and over $1,000 per month in other miscellaneous costs including
groceries, medical bills, and utilities. Id. at 2–3. She has $200 in savings and
owns no property of value. Id. at 3–4.
The Court is satisfied that Plaintiff is indigent. However, the inquiry
does not end there; the Court must also screen the complaint.
Notwithstanding the payment of any filing fee, the Court may screen
a complaint and dismiss it or any portion thereof if it raises claims that are
legally “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); Hoskins v. Poelstra, 320
Page 2 of 9
F.3d 761, 763 (7th Cir. 2003) (“District judges have ample authority to
dismiss frivolous or transparently defective suits spontaneously, and thus
save everyone time and legal expense. This is so even when the plaintiff has
paid all fees for filing and service . . . .”); Rowe v. Shake, 196 F.3d 778, 783
(7th Cir. 1999) (“[D]istrict courts have the power to screen complaints filed
by all litigants . . . regardless of fee status.”). 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th
Cir. 1997). The Court may dismiss a claim as frivolous where it is based on
an indisputably meritless legal theory or where the factual contentions are
clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989).
To state a claim, a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). This rule “requires parties to make their pleadings
straightforward, so that judges and adverse parties need not try to fish a
gold coin from a bucket of mud.” United States, ex rel. Garst v. LockheedMartin Corp., 328 F.3d 374, 378 (7th Cir. 2003).
“What is a short and plain statement depends, of course, on the
circumstances of the case.” Mountain View Pharmacy v. Abbott Lab’ys, 630
F.2d 1383, 1387 (10th Cir. 1980) (quoting Moore’s Federal Practice § 8.13, 8–
124, 125 (2d ed. 1979) and citing Atwood v. Humble Oil & Refining Co., 243
F.2d 885, 889 (5th Cir. 1957)). And “undue length alone” may not
necessarily warrant dismissal of an otherwise valid complaint. Stanard v.
Nygren, 658 F.3d 792, 797 (7th Cir. 2011). But rarely will this Court consider
a lengthy pro se complaint “short and plain,” unless it is clear and
intelligible. See Parker v. Learn the Skills Corp., No. 03-6936, 2004 U.S. Dist.
LEXIS 21499, at *5 (E.D. Penn. Oct. 25, 2004) (80-page pro se complaint did
Page 3 of 9
not comply with Rule 8); Struggs v. Pfeiffer, 2019 U.S. Dist. LEXIS 202582,
2019 WL 6211229, at *1–2 (E.D. Cal. Nov. 21, 2019) (dismissing 42-page
complaint as noncompliant with Rule 8). And shorter complaints may still
run afoul of the rule if they are rambling, repetitive, or confusing. Stanard,
658 F.3d at 798 (“[W]here the lack of organization and basic coherence
renders a complaint too confusing to determine the facts that constitute the
alleged wrongful conduct, dismissal is an appropriate remedy.”). See also
Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, No. 13-CV-3106, 2017 U.S.
Dist. LEXIS 198374, at * (26–27 (N.D. Ill. Dec. 1, 2017) (“While a minor
amount of surplus material in a complaint is not enough to frustrate Rule
8’s goals, unnecessary length coupled with repetitiveness, needless
complexity, and immaterial allegations are grounds for dismissal.”) (citing
Kadamovas v. Stevens, 706 F.3d 843, 844 (7th Cir. 2013)).
The complaint must give “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). The allegations must “plausibly suggest that the plaintiff has a right
to relief, raising that possibility above a speculative level.” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (quoting EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). Plausibility requires “more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In reviewing
the complaint, the Court is required to “accept as true all of the wellpleaded facts in the complaint and draw all reasonable inferences in favor
of the plaintiff.” Kubiak, 810 F.3d at 480–81 (citing Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cur. 2008)). However, the Court “need not accept as
true ‘legal conclusions, or threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.’” Brooks v. Ross, 578 F.3d
Page 4 of 9
574, 581 (7th Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal bracketing
The factual allegations in Plaintiff’s amended complaint are sparse,
but the Court gleans the following, aided by the records attached to both
Plaintiff’s original and amended complaints, as well as other documents
she has filed with the Court.3 In 2020, Plaintiff’s twenty-one-year-old
daughter, Christina, was a patient at Children’s Hospital for heart
treatment. ECF Nos. 5 at 1; 4 at 5. Hospital records provide that Christina
presented to Children’s Hospital on March 3, 2020 for “pre-heart transplant
evaluation” and underwent orthotopic heart transplantation on March 5,
2020. ECF No. 4-1 at 3. Complications ensued. Id. (noting, inter alia,
hemorrhagic shock and trans-tentorial herniation). Two days after the
surgery, Christina “succumbed to hypotension and shock . . . .” Id. She died
on March 7, 2020. Id.
Plaintiff seeks damages, including for pain and suffering, and
purports to sue under 42 U.S.C. Ch. 157 (“Quality, Affordable Health Care
For All Americans”) and 15 U.S.C. Ch. 47 (“Consumer Product Safety”).
ECF No. 4 at 4, 7. She writes that her child, Christina, was not returned in
“proper condition” by Defendant “during service/care” in violation of
federal law. Id. at 4.
See McDonald v. Brown, No. 03 C 4568, 2004 WL 2106604, at *2 (N.D. Ill.
Sept. 17, 2004) (“[F]or a pro se plaintiff the court considers the allegations contained
in all documents filed with the court.”) (citing Gutierrez v. Peters, 111 F.3d 1364,
1367 & n.2 (7th Cir. 1997) and Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)).
Page 5 of 9
Not including the instant case, Plaintiff has sued Defendant five
times in the last six years over Christina’s care.4 On October 16, 2023, the
Honorable Chief Judge Pamela Pepper dismissed one such recent case
without prejudice for lack of subject matter jurisdiction, writing that the
allegations in Plaintiff’s complaint were insufficient “to demonstrate that
the court has federal question jurisdiction.” Stephenson v. Children’s Hosp. of
Wis., 2:23-cv-00272-PP (E.D. Wis. Oct. 16, 2023), ECF No. 54 at 6. Plaintiff
had similarly alleged in that case that “the medical professionals involved
in” Christina’s care at Children’s Hospital committed negligence resulting
in Christina’s death. Id., ECF No. 1 at 2–4.
The day after that dismissal, Plaintiff re-filed her case. See Stephenson
v. Children’s Hosp. of Wis. Inc., 2:23-cv-01384-PP (E.D. Wis. Oct. 17, 2023).
Judge Pepper again dismissed the case without prejudice for lack of subject
matter jurisdiction. Id., ECF No. 15. Judge Pepper noted that, at first,
Plaintiff had checked the box in the complaint form indicating that she was
“suing under state law,” but that she later followed up by letter stating
“jurisdiction change from under state law to Federal law.” Id. at 5–6.
Nevertheless, Judge Pepper again concluded that, notwithstanding
Plaintiff’s bare invocation of 28 U.S.C. § 1331, the facts alleged did not
involve federal claims. Id. at 6–7.
See Stephenson v. Children’s Hosp. of Wis., 2:23-cv-272-PP (E.D. Wis. Feb. 28,
2023); Stephenson v. Children’s Hosp. of Wis. Inc., 2:23-cv-1384-PP (E.D. Wis. Oct. 17,
2023); Stephenson Johnson v. Children’s Hosp. of Wis., 2:17:cv-942-JPS (E.D. Wis. July
11, 2017); Stephenson Johnson v. Children’s Hosp. of Wis. Org. et al., 2:18-cv-51-LA
(E.D. Wis. Jan. 9, 2018); Stephenson Johnson v. Childrens Hosp. of Wis., 2:18-cv-117LA (E.D. Wis. Jan. 23, 2018).
Page 6 of 9
Mere days after that dismissal on October 27, 2023, Plaintiff filed the
instant case. She has clearly attempted to correct the errors identified by
Judge Pepper in her previous cases; for example, this time Plaintiff made
sure to select that she was “suing for a violation of federal law under 28
U.S.C. § 1331” and expressly provides two pieces of federal law under
which she purports to sue. ECF No. 1 at 5, 9 (citing 42 U.S.C. Ch. 157 and 15
U.S.C. Ch. 47). Unfortunately, however, Plaintiff’s case remains subject to
dismissal for lack of subject matter jurisdiction.
The facts that Plaintiff alleges again fail to implicate federal question
jurisdiction,5 and the federal statutory chapters to which Plaintiff cites are
inapplicable to this case. One, the Affordable Care Act, relates to healthcare
insurance coverage. See generally 42 U.S.C. Ch. 157. The other, entitled
“Consumer Product Safety,” relates to consumer-product related injury,
with consumer product defined as “an article, or component part thereof,
produced or distributed . . . for sale [or for personal use] to a consumer for
use in . . . a . . . household or residence, a school, in recreation, or otherwise.”
42 U.S.C. Ch. 47, §§ 2051, 2052(a)(5). The former statutory chapter does not
even provide for a private cause of action—in other words, it is not a body
of law under which an individual person such as Plaintiff can sue.
In light of the foregoing, the Court is constrained to dismiss this case
and deny as moot Plaintiff’s amended motion for leave to proceed in forma
pauperis. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
Nor can Plaintiff benefit from diversity jurisdiction, because the parties
are citizens of the same state. See 28 U.S.C. § 1332(a)(1); ECF No. 1 at 1–2; Stephenson
v. Children’s Hosp. of Wis. Inc., 2:23-cv-01384-PP (E.D. Wis. Oct. 27, 2023), ECF No.
15 at 6.
Page 7 of 9
that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
The Court extends its sincere condolences to Plaintiff regarding Christina’s
death. Nevertheless, and as Judge Pepper previously noted, Plaintiff’s case
is not appropriate for the federal forum. Stephenson v. Children’s Hosp. of Wis.
Inc., 2:23-cv-01384-PP (E.D. Wis. Oct. 27, 2023), ECF No. 15 at 6–7
(“[A]lthough the court empathizes with the plaintiff and cannot imagine
her suffering, the court does not have the authority to decide the plaintiff’s
claims . . . . A state court, like the Milwaukee County Circuit Court, does
have the authority to decide the plaintiff’s claims.”).
Plaintiff should refrain from attempting to re-file this case in federal
court. Should she again attempt to re-file matters that are duplicative of
those already dismissed several times for lack of subject matter jurisdiction,
she may run the risk of having a filing bar imposed against her. See in re
Chapman, 328 F.3d 903, 905 (7th Cir. 2003).
IT IS ORDERED that Plaintiff Grace C. Stephenson’s motion for
leave to proceed in forma pauperis, ECF No. 2, be and the same is hereby
DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s Grace C. Stephenson’s
amended motion for leave to proceed in forma pauperis, ECF No. 5, be and
the same is hereby DENIED as moot; and
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED without prejudice for lack of subject matter jurisdiction.
The Clerk of Court is directed to enter judgment accordingly.
Page 8 of 9
Dated at Milwaukee, Wisconsin, this 13th day of November, 2023.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, under certain
circumstances, a party may ask this Court to alter or amend its judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight
(28) days of the entry of judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The Court cannot extend
this deadline. See id. A party is expected to closely review all applicable
rules and determine what, if any, further action is appropriate in a case.
Page 9 of 9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?