United States District Court, C.D. Illinois
REPORT AND RECOMMENDATION
SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff Kenneth W.
Foster's Application to Proceed in District Court Without
Prepaying Fees or Costs (d/e 2) (IFP Motion). Foster has not
paid the filing fee. This Court must dismiss any case brought
in forma pauperis if the case fails to state a claim on which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
For the reasons set forth below, this Court recommends that
this case be dismissed pursuant to §1915(e)(2)(B)(ii).
Kenneth Foster's Complaint (d/e 1) alleges the following.
On May 30, 2018, in the early morning after midnight, a woman
(Woman) assaulted Foster in Foster's residence. Foster
does not allege the name of the Woman. Foster alleges he was
the “proprietor” of the residence. He alleges
that the Woman physically assaulted him and destroyed his
bedroom and bedroom furnishings completely. He alleges that
the Woman locked herself in his bathroom.
alleges that he called 911. The individual Defendants
Springfield, Illinois Police Officers Sullivan, Wilkerson,
and Elmore (the Defendant Officers) arrived 30 minutes later.
The Defendant Officers separated Foster and the Woman. The
Officers required Foster to step out of the residence. Foster
alleges that the Defendant Officers forced him to wait
outside in the rain. Foster alleges that the Woman used the
separation as an opportunity to steal his house and car keys.
alleges that the Defendant Officers eventually escorted the
Woman off Foster's property, but did not arrest or charge
either one of them and did not make a written report of the
incident. Foster alleges that the Woman threatened his life
when she was escorted off the premises and has subsequently
stalked his residence ever since.
asks the Court to hold the Defendant Officers accountable for
willful and wanton negligence and official misconduct.
law governs Foster's claims for willful and wanton
negligence and official misconduct by a municipal police
officer, not federal law or the U.S.
Constitution. Foster may only bring solely state law
claims in federal court if he and the defendants are citizens
of different states and the amount in controversy exceeds
$75, 000.00. 28 U.S.C. § 1332. Foster alleges that he is
a resident of Springfield, Illinois. He has not alleged that
the Defendant Officers are not citizens of Illinois. As
Springfield, Illinois Police Officers, the Court finds that
it is not plausible that the Defendant Officers are citizens
of a state other than Illinois. See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007) (Plaintiff must
allege facts that state a plausible claim). Based on
Foster's allegations, this Court cannot hear his state
law claims for willful and wanton negligence and official
misconduct. Foster could only proceed in federal court if he
alleged a violation of his rights under either federal law or
the U.S. Constitution.
has not alleged a violation of his rights under federal law
or the U.S. Constitution. Foster alleges that the Defendant
Officers did not arrest the tenant or write a police report.
Foster has no federal or Constitutional right that would
obligate the Defendant Officers to take such action.
See Rossi v. City of Chicago, 790 F.3d 729,
735 (7th 2015) (A police detective did not violate
an assault victim's rights by failing to investigate the
assault or write a report). The Rossi court quoted
the decision in DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189 (1989), in which the
Supreme Court stated, “[T]he Constitution
‘generally confer[s] no affirmative right to
governmental aid . . . .” DeShaney, 489 U.S.
at 196. Foster, therefore, has no federal or Constitutional
right to require the Defendant Officers to arrest the Woman
or to write a report.
point, Foster may pursue remedies against the Woman in state
court. According to the allegations, the Woman injured him
and destroyed his property. The Defendant Officers'
alleged actions or inactions did not affect his ability to
pursue any remedies against her for those wrongs. See
Rossi v. City of Chicago, 790 F.3d at 735-37. Foster,
however, fails to allege a federal claim.
also alleges no facts on which he could base a claim directly
against the Defendant City of Springfield, Illinois (City),
and asks for no relief directly against the City. Foster,
therefore, fails to state a claim on which this court may
grant any relief against any Defendant.
THIS COURT RECOMMENDS that this case be dismissed for failure
to state a claim over which this Court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
This Court should dismiss any state law claims for lack of
subject matter jurisdiction.
Foster is advised that any objection to this Report and
Recommendation must be filed in writing with the Clerk of the
Court within fourteen days after service of a copy of this
Report and Recommendation. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(2). Failure to file a timely objection
will constitute a waiver of objections on appeal. See ...