Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge Virginia M. Kendall Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 12 C 3433 DATE 6/28/2012

CASE

TITLE

Bacerott vs. Boolingbrook Police Department, IL

DOCKET ENTRY TEXT

Bacerott’s Motion to Proceed In Forma Pauperis is granted but the Boolingbrook Police Department,

is dismissed for failure to state a claim. Counsel is appointed to represent plaintiff and shall file an

amended complaint by July 31, 2012.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Lorena Bacerott moves to proceed in forma pauperis without the full prepayment of filing

fees. Pursuant to 28 U.S.C. § 1915(a), the Court may authorize Bacerott to proceed in forma pauperis

if she is unable to pay the mandated court fees. Bacerott need not be penniless to proceed in forma

pauperis under § 1915(a)(1). See Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir. 1980). Instead, she is

eligible to proceed in forma pauperis if payment of the filing fee will prevent her from providing for

life’s necessities. See id. According to her financial affidavit, Bacerott is currently unemployed, has

no money in a checking or savings account, and owns no stocks, bonds, securities, or other

financial instruments. Bacerott does not own any real estate nor a car. Based on Bacerott’s financial

affidavit it appears that the only income she receives is $800 per month as a gift from her father to

pay her rent. Based on these facts, Bacerott’s financial affidavit sets forth her inability to pay the

mandated court fees.

Under 28 U.S.C. § 1915, the Court must look beyond Bacerott’s financial status to determine

whether she has a valid claim to proceed. Section 1915 requires the Court to review the claims of a

plaintiff who seeks to proceed in forma pauperis and dismiss the action if it is frivolous or malicious,

if it fails to state a claim on which relief may be granted, or if the plaintiff seeks damages from a

defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)‐(iii); see also Lindell v.

McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003). When evaluating whether a plaintiff has stated a

claim in the context of an application for leave to proceed in forma pauperis, the court applies the

same standard as that for a motion to dismiss under Rule 12(b)(6). See, e.g., Allen v. JP Morgan Chase,

2010 WL 1325321, *1 (N.D. Ill. 2010) (citing Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000)).

12C3433 Bacerott vs. Boolingbrook Police Department, IL Page 1 of 2
STATEMENT

Bacerott brings a cause of action against Boolingbrook Police Officer Daniel Smetters, Andrew

Sraga, Peter Moranda and the Boolingbrook Police Department pursuant to 42 U.S.C. § 1983.

Bacerott claims that the Defendants violated her constitutional rights by using excessive force

against her, failing to intervene to protect her from violations of her rights by one or more of the

Defendants, conspiring together to violate her rights, intentionally inflicting her with emotional

harm, falsely arresting her, battering her, and conducting an improper search of her and her car.

Bacerott alleges that Officer Smetters violated 42 U.S.C. § 1983 in connection with a traffic

altercation with Bacerott. Bacerott alleges that Smetters approached her to ask if she was honking

her car horn. She tried to indicate that she could not have been honking the horn by showing

Smetters that her keys were not in the ignition. Bacerott alleges that she had her rottweiler in the

car with her and that he was barking and breathing in her ear, and that she was trying to hold him

down. She alleges that Smetters directed her to step out of her car, which she refused to do because

she was concerned for her dog’s safety. Bacerott alleges that Smetters got assistance from other

male officers. Bacerott alleges that Smetters refused to get a female officer and proceeded to enter

her vehicle. Bacerott alleges that both she and her dog were maced by Smetters. She alleges that the

vehicle’s passenger window was broken and that she was pulled out of her car by the male officers.

She alleges that she sustained a fracture to her right arm as a result of the altercation. These claims

plausibly state a claim for relief. However, as to the Boolingbrook Police Department, Bacerott has

not stated a cause of action against it. A state municipal entity is not vicariously liable for the

constitutional torts of its employees. See Monell v. Department of Social Services of City of New York,

436 U.S. 658, 691 (1978). Bacerott has not alleged any facts against the Boolingbrook Police

Department directly. She seeks to hold them liable for the allegedly unconstitutional torts of Officer

Smetters. This is precisely what Monell forbids. Thus, Bacerott’s claims against the Boolingbrook

Police Department are dismissed.

Bacerott’s Motion to Proceed In Forma Pauperis is granted but the Boolingbrook Police Department,

is dismissed for failure to state a claim. Counsel is appointed to represent plaintiff and shall file an

amended complaint by July 31, 2012.

12C3433 Bacerott vs. Boolingbrook Police Department, IL Page 2 of 2