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Beane v. Pike

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 30, 2010

KENNY BEANE, PLAINTIFF,
v.
HAROLD PIKE III, DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on plaintiff Kenny Beane's motion for leave to proceed in forma pauperis (Doc. 3) and for appointment of counsel (Doc. 3).

A federal court may permit an indigent party to proceed without pre-payment of fees. 28 U.S.C. § 1915(a)(1). Nevertheless, a court can deny a qualified plaintiff leave to file in forma pauperis or can dismiss a case if the action is clearly frivolous or malicious or fails to state a claim. 28 U.S.C. § 1915(e)(2)(B)(i) & (ii). The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to state a claim if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). When assessing a petition to proceed in forma pauperis, a district court should inquire into the merits of the petitioner's claims, and if the court finds them to be frivolous, it should deny leave to proceed in forma pauperis. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982).

The Court is satisfied from Beane's affidavit that he is indigent. However, it cannot determine that his cause of action is not frivolous or malicious. Beane tells the Court which of his constitutional rights he thinks defendant Harold Pike III has violated, but he does not describe the facts of what happened between him and Pike that caused those violations. The Court needs to know Beane's view of the facts of what happened between Beane and Pike before it can decide whether to allow him to proceed without pre-payment of fees. The Court ORDERS that Beane shall have up to and including October 22, 2010, to file a supplement to his complaint explaining the facts that gave rise to the violations alleged in the complaint. The Court RESERVES RULING on Beane's pending motions (Docs. 2 & 3) until after October 22, 2010. If Beane is unable to tell the Court the facts on which his claims are based, the Court may dismiss this action for failure to state a claim.

IT IS SO ORDERED.

20100930

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