UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CYNTHIA M. HERNDON, )

)

Plaintiff, )

)

v. ) No. 3:15 CV 96 

)

INDIANA DEPARTMENT OF ) 

CHILD SERVICES, ) 

)

Defendants. )

OPINION AND ORDER

Plaintiff Cynthia M. Herndon, a pro se plaintiff, has filed an amended complaint

against the Indiana Department of Child Services (“DCS”) (DE # 3) seeking relief under 42

U.S.C. § 1983 along with an amended Motion for Leave to Proceed In Forma Pauperis (DE

# 4). Ordinarily, a plaintiff must pay a statutory filing fee of $350 to bring an action in

federal court. 28 U.S.C. § 1914(a). However, the federal in forma pauperis statute, 28 U.S.C.

§ 1915, provides indigent litigants an opportunity for meaningful access to the federal

courts despite their inability to pay the costs and fees associated with that access. To

authorize a litigant to proceed in forma pauperis, a court must make two determinations:

first, whether the litigant is unable to pay the costs of commencing the action, 28 U.S.C.

§ 1915(a)(1); and second, whether the action is frivolous or malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against a defendant who is

immune from such relief, 28 U.S.C. § 1915(e)(2)(B).

With respect to the second of these determinations, district courts have the power

under 28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint
on the defendants, and courts must dismiss a complaint if it fails to state a claim. Courts

apply the same standard under § 1915(e)(2)(B) as when addressing a motion to dismiss

under FEDERALRULE OF CIVIL PROCEDURE 12(b)(6). DeWalt v. Carter, 224 F.3d 607, 611 (7th

Cir. 2000). To survive a motion to dismiss under federal pleading standards, the complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Id. District courts may

look to exhibits attached to the complaint in deciding whether a complaint states a claim.

Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1005 (7th Cir. 1990).

In her amended complaint, plaintiff alleges that DCS wrongfully filed a suit in

Indiana state court in an attempt to terminate her parent-child relationship with her minor

son. (DE # 3; DE # 3-1.) Plaintiff alleges that DCS is liable under 42 U.S.C. § 1983 because

DCS initiated a lawsuit against plaintiff regarding her parent-child relationship with her

minor son despite the fact that an appeal over the same issue was already pending. (DE # 3;

DE # 3-1.) The only defendant plaintiff has named in her complaint is DCS. (DE # 3 at 1-2.) 

Section 1983 “provides that aperson may not be deprived of any constitutional right

by an individual acting under color of state law.” Lewis v. Downey, 581 F.3d 467, 472 (7th

Cir. 2009). That section specifically states, in part: 

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress . . . .

42 U.S.C. § 1983. 

Section 1983 therefore “applies only to a ‘person’ who acts under color of state law.”

Dye v. Wargo, 253 F.3d 296, 299 (7th Cir. 2001). In Will v. Michigan Dept. of State Police, the

Supreme Court held that states and state agencies are not “persons” under Section 1983.

491 U.S. 58, 65-71 (1989); see also Bradley v. Wisconsin Dept. of Children and Families, 528 F.

App’x 680, 681 (7th Cir. 2013) (“Because the Wisconsin Department of Children and

Families is a state agency . . . [the plaintiff] cannot pursue a § 1983 suit against it.”); Thomas

v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012) (“[A] state and its agencies are not suable

‘persons’ within the meaning of section 1983 . . . .”)

DCS is an agency of the state of Indiana. Indiana Department of Child Services: About

DCS, www.in.gov, http://www.in.gov/dcs/2370.htm (last visited April 22, 2015) (“The

Department of Child Services was established in January 2005 by an executive order of

Governor Mitch Daniels.”). Therefore, plaintiff cannot maintain her Section 1983 suit

against DCS, and she has failed to state a claim in her complaint. 

For the foregoing reasons, plaintiff’s complaint will be dismissed for failing to state

a claim upon which relief can be granted unless plaintiff SHOWS CAUSE by May 27, 2015

why this action should not be dismissed. Luevano v. Wal–Mart Stores, Inc., 722 F.3d 1014,

1022 (7th Cir.2013) (“Without at least an opportunity to amend or to respond to an order

to show cause, an IFP applicant’s case could be tossed out of court without giving the

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applicant any timely notice or opportunity to be heard to clarify, contest, or simply request

leave to amend.”).

SO ORDERED.

Date: April 27, 2015

 s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT