UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

KENDALL WARNER, KENNY )

TARVER, LaTROY RAY, EUGENE )

HOPE, DARNELL WATKINS, )

SHERWIN JOHNSON, )

MELVIN WHITING,. )

)

Plaintiffs, )

)

v. ) No. 2:14 CV 60

 )

STATE OF INDIANA, )

LAKE COUNTY, VISA, )

MASTERCARD, AMERICAN )

EXPRESS, GOOGLE, INC., et al.,

1 )

)

Defendants. )

OPINION AND ORDER

Kendall Warner, Kenny Tarver, LaTroy Ray, Eugene Hope, Darnell Watkins,

Sherwin Johnson and Melvin Whiting, acting pro se, have filed a complaint without

paying a filing fee. The main thrust of the complaint is that they have been wrongfully

required by state authorities to register as violent sex offenders, and their status as such

has been published on various websites, the owners of those websites demanding

payment for removal. 

 The court is empowered to “authorize the commencement, prosecution or

defense of any suit, action or proceeding, civil or criminal, or appeal therein, without

1

 The court uses “et al.” in the caption to refer to a number of individuals who are

not named in the caption, but who are listed in the body of the complaint and for whom

summons have been requested. This makes their status as potential parties unclear.

Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005); Ordower v. Feldman, 826 F.2d

1569, 1570 (7th Cir. 1987).

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prepayment of fees or security therefor, by a person who submits an affidavit that

includes a statement of all assets such [person] . . . possesses [showing] that the person

is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). The

problems start there, because only plaintiff Warner has filed the necessary affidavit.

Therefore, the court cannot authorize the remaining plaintiffs to commence the suit

without paying their filing fees.

The problems don’t end there, however. “A document filed pro se is to be

liberally construed, and a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Nevertheless,

Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines

that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii) seeks monetary relief against

a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). In evaluating whether a complaint is frivolous for purposes of

this statute, the court need not “accept without question the truth of the plaintiff's

allegations.” Denton v. Hernandez, 504 U.S. 25, 33-33 (1992). Instead, the statute “accords

judges not only the authority to dismiss a claim based on an undisputably meritless

legal theory, but also the unusual power to pierce the veil of the complaint’s factual

allegations and dismiss those claims whose factual contentions are clearly baseless.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). 

 A complaint must contain sufficient factual matter to “state a claim that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

2

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has facial plausibility when the pleaded factual content 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) (citing Twombly, 550 U.S. at 556). Legal conclusions can

provide a complaint’s framework, but unless well-pleaded factual allegations move the

claims from conceivable to plausible, they are insufficient to state a claim. Id. at 680.

“Determining whether a complaint states a plausible claim for relief [is] a

context-specific task that requires the reviewing court to draw on its judicial experience

and common sense.” Id. at 679. “[C]ourts are not bound to accept as true a legal

conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, citing Papasan v.

Allain, 478 U.S. 265, 286 (1986) (quotation marks omitted). 

“[A] plaintiff’s obligation to provide the grounds of his entitlement to relief

requires more than labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do. Factual allegations must be enough to raise a right to relief

above the speculative level, on the assumption that all the allegations in the complaint

are true (even if doubtful in fact).” Id. (quotation marks, citations and footnote omitted).

“[I]n considering the plaintiff’s factual allegations, courts should not accept as adequate

abstract recitations of the elements of a cause of action or conclusory legal statements.”

Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint

has alleged—but it has not shown—that the pleader is entitled to relief.’” Iqbal 556 U.S.

at 679 (quotation marks and brackets omitted). Thus, “a plaintiff must do better than

3

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putting a few words on paper that, in the hands of an imaginative reader, might suggest

that something has happened to her that might be redressed by the law.” Swanson v.

Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).

There are numerous problems with the complaint filed by the seven plaintiffs,

the court will describe but a few. To begin, although all seven have signed it, it seems

unlikely that the allegations in it could apply identically and equally to each. Even if all

were convicted of being in a conspiracy together (and doing its own computer-assisted

research, the court can find no such case2

), other allegations in the complaint are

individualized, e.g., “I wrote on their website page and asked them to remove this

malicious information.” (DE #1 at 2, ¶ 1.) The complaint doesn’t specify which

defendant’s website this means, nor which plaintiff did so. The court simply has no way

to determine which allegations in the complaint apply to which plaintiff.

Even were that not a problem, at the heart of the allegations in the complaint is a

claim that each of the plaintiffs has been unlawfully required to register as a violent sex

offender, and that because the statute requiring registration, variously specified in the

complaint as Ind. Code § 11-8-8, § 5-2-12 (DE # 1 at ¶ 2) or Ind. Code § 35-42-4-1 (Id. at

¶ 2) does not apply retroactively, and the plaintiffs’ convictions were before then.

Besides Eleventh Amendment immunity, the roadblock is that the possible retroactive

application of state offender registration laws doesn’t violate the United States

2

 Plaintiffs Darnell Watkins and Kendall Warner appear to have been convicted

of murder in a joint trial. Watkins v. State, 446 N.E.2d 949 (Ind. 1983).

4

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Constitution or federal law, Smith v. Doe, 538 U.S. 84 (2003), and so the plaintiffs don’t

have a claim. This is not to say they might not have a claim under Indiana law, an issue

on which this court expresses no opinion; but if they do, any such claim must be

brought in state court,3

 not here.

Even if this defect did not exist, the complaint utterly fails to state any plausible

claim against any of the private defendants named in either the caption or the body of

the complaint. Other than throwing a conclusory label of “conspiracy” into the pot

against them all, the only thing the complaint says about MasterCard, American

Express and Visa is that they process payments for the websites; the only thing said

about Google and the other website “publishing network system[s],” (DE # 1 at ¶ 2) is

that they “make money” by publishing the registration information provided by the

state; the only thing said about the various individual persons named in the body of the

complaint is . . . nothing.4

 The court is not aware of any legal theory which could be

used to impose liability on any of that alleged conduct. Therefore, the complaint fails to

state any non-frivolous claim against any of the private corporate or individual

defendants.

3

 Unless, that is, plaintiffs also had some valid federal claim; then possibly the

state-law claim could be brought within the court’s supplemental jurisdiction.

4

 From the summonses provided, it appears that these individuals may be

employed by one of the corporate entities.

5

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For the foregoing reasons, this case is DISMISSED pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i)-(iii). As to the State of Indiana and Lake County, this dismissal is

without prejudice to any possible state claims. As to the remaining defendants, the

dismissal is with prejudice.

SO ORDERED.

Date: March 7, 2014

 s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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