UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

NIKKI L. SULLIVAN, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:15-CV-51-TLS

)

ALLEN SUPERIOR COURT )

MISDEMEANOR AND TRAFFIC )

DIVISION, )

)

Defendant. )

OPINION AND ORDER

The Plaintiff, proceeding pro se, filed an Employment Discrimination Complaint [ECF

No. 1], along with a Petition to Proceed Without Pre-Payment of Fees and Costs [ECF No. 2].

According to the Plaintiff’s Complaint, her termination from long time employment with the

Allen Superior Court Misdemeanor and Traffic Division for a purported dress code violation was

retaliatory, and she did not actually violate the dress code.

The federal statute governing proceedings in forma pauperis, 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. 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, id. § 1915(e)(2)(B). 

Under the first inquiry, an indigent party may commence an action in federal court,
without prepayment of costs and fees, upon submission of an affidavit asserting an inability “to

pay such costs or give security therefor.” 28 U.S.C. § 1915(a). Here, the Plaintiff has sufficiently

established that she is unable to prepay the filing fee.

The inquiry does not end here, however. In assessing whether the Plaintiff may proceed

in forma pauperis, the Court must look to the sufficiency of the Complaint to determine whether

it can be construed as stating a claim for which relief can be granted. 28 U.S.C.

§1915(e)(2)(B)(ii). District courts have the authority under 28 U.S.C. § 1915(e)(2) to screen

complaints even before service of the complaint 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); see also

Butler v. City of Milwaukee, 295 Fed. Appx. 838, 839–40 (7th Cir. 2008) (stating that it was

“wholly within the district court’s authority to dismiss sue sponte for failure to state a claim”).

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).

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), a court presumes all well-pleaded allegations to be true, views them in the light most

favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn from the

allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995). The

Supreme Court has articulated the following standard regarding factual allegations that are

required to survive dismissal:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his

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“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). 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and

footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is

plausible on its face.” Id. at 570. “A claim 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, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S.

at 556). 

Although the court must accept as true all well-pleaded facts and draw all permissible

inferences in the Plaintiff’s favor, it need not accept as true “threadbare recitals of a cause of

action’s elements, supported by mere conclusory statements.” Iqbal, 129 S. Ct. at 1949. 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

1950–51. The Court notes that 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). 

The Plaintiff’s Employment Discrimination Complaint invokes 42 U.S.C. § 1981, which

prohibits race discrimination in the making and enforcing of contracts. 42 U.S.C. § 1981(a)

(providing that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, . . .

as is enjoyed by white citizens”); O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir.

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2011). Section 1981 “prohibits racial discrimination and retaliation against employees when a

contractual relationship exists between the employer and employee.” Davis v. Time Warner

Cable of Se. Wis., L.P., 651 F.3d 664, 671 (7th Cir. 2011). Nowhere in the Plaintiff’s

Employment Discrimination Complaint does she identify her race, or the statutorily protected

activity that would support a retaliation claim. Without this information, there are simply no

facts from which it can be inferred that the Defendant violated the Plaintiff’s equal rights under

the law.1

For the foregoing reasons, the Court DENIES the Application to Proceed in District

Court Without Prepaying Fees or Costs [ECF No. 2] and DISMISSES the Complaint WITHOUT

PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Plaintiff has until March 23, 2015,

to file an amended complaint, and to either pay the filing fee or renew her Petition to Proceed in

District Court Without Prepaying Fees of Costs. If the Plaintiff files an amended complaint, she

is DIRECTED to attach a copy of the charge of discrimination as directed in paragraph 2 of the

Employment Discrimination Complaint form.

SO ORDERED on February 26, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

1 Even if the Plaintiff had identified Title VII as the statutory source of her claim instead of

§ 1981, the result would be the same. See Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012) (noting that a

claim of discrimination or retaliation under § 1981 is evaluated under the same standards as are applicable

to claims under Title VII). 

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