UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

KEVIN LEE DIXIE, )

)

Plaintiff, )

)

v. ) Case No. 1:14-CV-73-TLS

)

JEFF SHRIMPUS, Officer in Charge )

of Sex Offender Registry, )

)

Defendant. )

OPINION AND ORDER

This cause is before the Court upon Plaintiff Kevin Lee Dixie’s Application to Proceed

Without Prepayment of Fees and Costs (in forma pauperis) [ECF No. 2], filed on March 10,

2014. The Plaintiff also filed a Complaint alleging that Jeff Shrimpus, in his capacity as the

Allen County Sheriff’s Department officer in charge of sex offender registry, has violated his

due process rights and caused him duress by providing information about the Defendant’s 1991

sexual battery conviction to the Fort Wayne Housing Authority, despite that fact that the age of

the offense did not require him to register as a sex offender.

DISCUSSION

The federal in forma pauperis statute, 28 U.S.C. § 1915, provides indigent litigants an

opportunity for meaningful access to the federal courts in spite of their inability to pay the costs

and fees associated with that access. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). 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). 

Under the first inquiry, an indigent party may file an action in federal court, without costs

and fees, upon submission of an affidavit asserting an inability “to pay such fees or give security

therefor.” 28 U.S.C. § 1915(a)(1). Here, the Plaintiff reports he is not presently incarcerated and

is not currently employed. His only source of income appears to be social security disability

benefits of $710 per month. The Plaintiff states that he has no money in his checking and savings

accounts and does not own any real estate, stocks, bonds, securities or other financial

instruments, or other valuable property. The Plaintiff further states that he has no dependents.

Based on the Plaintiff’s financial affidavit, the Court is satisfied that he meets the statutory

poverty requirements of 28 U.S.C. § 1915(a).

To complete the inquiry, the Court must now look to the sufficiency of the Complaint to

determine whether it can be construed as stating a claim that is not frivolous or malicious, upon

which relief can be granted, and that does not seek monetary relief against a defendant who is

immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). District courts have the authority under

28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the pleading on the

defendants, and must dismiss the complaint if it fails to state a claim. Rowe v. Shake, 196 F.3d

778, 783 (7th Cir. 1999). Courts apply the same standard under § 1915(e)(2)(B) as when

addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Cf. Lagerstrom

v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006) (affirming dismissal of complaint screened under

28 U.S.C. §1915A applying the Rule 12(b)(6) standard).

To state a claim under the federal notice pleading standards, all that a complaint must do

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is set forth a “short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Factual allegations are accepted as true and need only give “‘fair

notice of what the . . . claim is and the grounds upon which it rests.’” EEOC v. Concentra Health

Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)) (other citation omitted). However, a plaintiff’s allegations must show that his

entitlement to relief is plausible, rather than merely speculative. Tamayo v. Blagojevich, 526

F.3d 1074, 1083 (7th Cir. 2008). Pro se complaints are construed liberally and held to

less-exacting standards than those drafted by counsel. Alvarado v. Litscher, 267 F.3d 648, 651

(7th Cir. 2001).

Although the Plaintiff does not specifically refer to 42 U.S.C. § 1983, he has filed his

Complaint on a form designated for claims under 42 U.S.C. § 1983 and refers to a violation of

his due process rights. To state a claim for relief under 42 U.S.C. § 1983, the Plaintiff must

allege that (1) he was deprived of a right secured by the Constitution or federal law, and (2) the

deprivation was caused by a person acting under color of state law. Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 155 (1978). Even presuming all well-pleaded allegations to be true and viewing

them in the light most favorable to the Plaintiff, and accepting as true all reasonable inferences to

be drawn from the allegations, the Plaintiff’s factual allegations are not enough to raise the

Plaintiff’s right to relief above the speculative level. 

The Plaintiff alleges that the Defendant, in his position as the officer in charge of the sex

offender registry, provided information about the Plaintiff’s criminal background to the Fort

Wayne Housing Authority (FWHA) in connection with his application to lease an apartment at

East Central Tower Apartments. His Complaint does not allege that the information was

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inaccurate. Instead, the Plaintiff appears to believe that, because he was not required to register

as a sex offender, it was likewise improper for the Defendant to provide any information

regarding his sexual battery offense to the FWHA or to East Central Towers. The Plaintiff’s

Complaint, when read in its entirety, suggests that he is suing over the fact that he was required

to participate in an informal hearing to challenge the FWHA’s initial determination that he was

not eligible to receive housing assistance. According to the Complaint allegations, upon further

consideration of his criminal history, East Central Towers accepted him as a tenant, the FWHA

subsidized his rent, and he completed a one-year lease.

The Due Process Clause of the Fourteenth Amendment forbids a state from depriving any

person of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

Procedural due process claims require a two-fold analysis: the court must first determine

“whether the plaintiff was deprived of a protected interest;” second, the court “must determine

what process is due.” Pugel v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 662 (7th Cir. 2004); see

also Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (“To demonstrate a procedural due

process violation of a property right, the plaintiff must establish that there is ‘(1) a cognizable

property interest; (2) a deprivation of that property interest; and (3) a denial of due process.’”

(quoting Hudson v. City of Chi., 374 F.3d 554, 559 (7th Cir. 2004)). The most liberal reading of

the Complaint fails to reveal any inference that the Defendant’s response to the FWHA violated

his rights under the Constitution. 

First, when the Defendant provided information about the Plaintiff’s criminal history to

the FWHA, he did not deprive the Plaintiff of any “interests encompassed by the Fourteenth

Amendment’s protection of liberty and property” Bd. of Regents of State Colleges v. Roth, 408

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U.S. 564, 569 (1972). The Plaintiff’s Complaint does not identify the specific interest implicated

in this case, so the Court will consider several possible interests. “It is well-settled that, standing

alone, damage to one’s reputation does not implicate a cognizable liberty interest.” Dupuy v.

Samuels, 397 F.3d 493, 509 (7th Cir. 2005); see also Paul v. Davis, 424 U.S. 693, 701 (1976)

(holding that stigma to one’s reputation was not entitled to Fourteenth Amendment protection).

Even if the Court assumes that the Plaintiff is instead complaining about the impact the

Defendant’s actions had on his ability to obtain subsidized housing, his claim fares no better.

Seventh Circuit precedent is clear that there is no legitimate claim to entitlement to a specific

Section 8 residence, such as the East Central Towers. Fincher v. South Bend Heritage Found.,

606 F.3d 331, 334–35 (7th Cir. 2010); Eidson v. Pierce, 745 F.2d 453, 462 (7th Cir. 1984)

(holding that applicants for housing subsidized under Section 8 of the United States Housing

Act, 42 U.S.C. § 1437(f), did not have a property interest because the landlords were not

constrained by any legal criteria in the tenant selection process); see also Talley v. Lane, 13 F.3d

1031, 1035 (7th Cir. 1994) (finding no due process claim when the plaintiff was rejected from

the Chicago Housing Authority’s housing program for the disabled because of his extensive

criminal history). And while the Plaintiff enjoyed a property interest in assistance through the

Public Housing program, as opposed to a specific residence of his choice, see Fincher, 606 F.3d 

at 336, he was provided a process through which to challenge the FWHA’s initial denial of

assistance. Through this process, he obtained the assistance he sought. Indeed, his objection

appears to be, not that he was provided the process that was due, but that he was required to go

through a process at all. The Plaintiff’s factual assertions, therefore, preclude him from

proceeding on a claim that he was denied due process. See Atkins v. City of Chi., 631 F.3d 823,

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832 (7th Cir. 2011) (a plaintiff can plead himself out of court if he pleads facts that show he has

no legal claim).

Further, as it relates to the individual Defendant the Plaintiff has directed his claim

against in this litigation, the Plaintiff has not alleged a plausible claim because the Defendant

was merely relaying facts that had already been established through the due process provided by

the criminal justice system. Therefore, any “injury” the Plaintiff suffered by having this

information shared with the FWHA was the result of his own criminal actions, and the Plaintiff

cannot attribute any loss of a protectable interest related to these convictions to the Defendant.

The pleaded factual content of the Complaint does not allow the Court to draw the

reasonable inference that the Defendant is liable for violating the Plaintiff’s due process rights.

Because the Complaint does not state a claim upon which relief can be granted, the Court must

deny the application to proceed in forma pauperis and dismiss the Complaint. However, because

plaintiffs generally may amend their complaints once as a matter of course before an answer has

been filed, even after a court grants a motion to dismiss, See Fed. R. Civ. P. 15(a)(1)(B), and pro

se litigants seeking in forma pauperis status enjoy this same right, see Luevano v. Wal-Mart

Stores., Inc., 722 F.3d 1014, 1022–23 (7th Cir. 2013), the Court’s dismissal is without prejudice

to filing an amended pleading. The Court is not convinced that the Plaintiff could offer any

amendments consistent with the current allegations that would render a claim plausible, but the

Court is not prepared to rule that the deficiencies in the current Complaint are incurable. See

Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010) (“Generally, if a district court

dismisses for failure to state a claim, the court should give the party one opportunity to try to

cure the problem, even if the court is skeptical about the prospects for success.”). 

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CONCLUSION

For the reasons stated above, the Court DENIES the Plaintiff’s Application to Proceed

Without Prepayment of Fees and Costs (in forma pauperis) [ECF No. 2], and DISMISSES the

Plaintiff’s Complaint WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure

to state a claim upon which relief may be granted. The Plaintiff is GRANTED until April 14,

2014, to file an amended complaint. If the Plaintiff fails to respond by that date, the Court will

direct the entry of judgment dismissing the entire case.

SO ORDERED on March 24, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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