United States District Court, S.D. Illinois
PAMELA B. COOPER, Plaintiff,
DEPARTMENT OF HUMAN SERVICES, Defendant.
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
December 18, 2017, plaintiff Pamela B. Cooper filed suit in
this Court alleging wrongful termination and breach of
contract by her former employer, Defendant Illinois
Department of Human Services (Doc. 1). Now before the Court
is plaintiff's motion for leave to proceed in forma
pauperis (IFP), i.e., without prepaying the filing fee
or costs (Docs. 2 &7) and motion for service of process
at the government's expense (Doc. 4).
28 U.S.C. §1915(a)(1), a federal district court may
allow a civil case to proceed without prepayment of fees, if
the movant “submits an affidavit that includes a
statement of all assets [she] possesses [showing] that the
person is unable to pay such fees or give security
therefor.” Plaintiff has done so in the instant case
(Doc. 7). But the Court's inquiry does not end there. 28
U.S.C. § 1915(e)(2) requires careful threshold scrutiny
of the complaint filed by an IFP plaintiff. Indeed, the
statute requires the Court to dismiss the complaint
at any time if (a) the allegation of poverty is untrue, (b)
the action is frivolous or malicious, (c) the action fails to
state a claim upon which relief can be granted, or (d) the
action seeks monetary relief against a defendant who is
immune from such relief. Id.
action or claim is frivolous if “it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). An action fails to
state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Conversely, a
complaint is plausible on its face “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Although the Court is obligated to
accept factual allegations as true, see Smith v.
Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail
to provide sufficient notice of a plaintiff's claim.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same
time, however, the factual allegations of a pro se
complaint are to be liberally construed. See Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
complaint survives § 1915 review. Her sworn IFP motion
establishes that she is indigent for purposes of IFP
review. Nothing indicates that her action is frivolous
or malicious. And at this point, the Court cannot conclude
that this action fails to state any claim upon which relief
could be granted. This does not mean the Court finds that
plaintiff's claims have merit or should prevail.
the Court GRANTS the motion for pauper
status (Doc. 7), and denies as moot plaintiff's
duplicative motion for pauper status (Doc. 2), and motion for
service of process at the government's expense (Doc. 4).
Given that plaintiff's complaint survives review under
§ 1915A, service shall be ordered on the defendant as a
matter of course. No. motion is required.
IT IS HEREBY ORDERED that the Clerk of Court
shall prepare for defendant Illinois Department of Human
Services: (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). If a defendant fails to sign and return
the Waiver of Service of Summons (Form 6) to the Clerk within
30 days from the date the forms were sent, the Clerk shall
take appropriate steps to effect formal service on that
defendant, and the Court will require that defendant pay the
full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
IS FURTHER ORDERED that plaintiff shall serve upon
defendant (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document
submitted for consideration by the Court. Plaintiff shall
include with the original paper to be filed a certificate
stating the date on which a true and correct copy of the
document was served on defendant or counsel. Any paper
received by a district judge or magistrate judge that has not
been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
IS FURTHER ORDERED that if judgment is rendered
against plaintiff, and the judgment includes the payment of
costs under Section 1915, plaintiff will be required to pay
the full amount of the costs, notwithstanding that her
application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
is ADVISED that at the time application was
made under 28 U.S.C. § 1915 for leave to commence this
civil action without being required to prepay fees and costs
or give security for the same, the applicant was deemed to
have entered into a stipulation that the recovery, if any,
secured in the action shall be paid to the Clerk of the
Court, who shall pay therefrom all unpaid costs taxed against
plaintiff and remit the balance to plaintiff. Local Rule
plaintiff is ADVISED that she is under a
continuing obligation to keep the Clerk of Court and each
opposing party informed of any change in her address; the
Court will not independently investigate her whereabouts.
This shall be done in writing and not later than 7 days after
a change in address occurs. Failure to comply with this order
will cause a delay in the transmission of court documents and
may result in dismissal of this action for want of
prosecution. See Fed. R. Civ. P. 41(b).