UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

LLOYD BROWN, JR., )

)

Plaintiff, )

) 

v. ) CAUSE NO.: 1:16-CV-260-TLS

)

DAVID GILBERT, et al., )

)

Defendants. )

OPINION AND ORDER

Lloyd Brown, Jr., a Plaintiff proceeding pro se, filed a Second Amended Complaint [ECF 

No. 10] against Defendants David Gilbert, Penny K. Hix, Jess Alumbaugh, J. Mitchener, T. 

Brady, Alex Kenworthy, B. McKnight, J. Swanson, D. Sessoms, J. Hurlburt, B. Ridgway, Brian 

F. McLane, Dana J. Kenworthy, Warrens Haas, Caralyn J. Mawery, the City of Marion, the 

County of Grant, and Jane Does. He also filed a Motion for Leave to Proceed in forma pauperis

[ECF No. 11]. For the reasons set forth below, the Plaintiff’s Motion is DENIED. The Plaintiff’s 

Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and is DISMISSED WITH 

PREJUDICE for the claims against Penny K. Hix.

DISCUSSION

Ordinarily, a plaintiff must pay a statutory filing fee to bring an action in federal court. 28 

U.S.C. § 1914(a). However, the federal in forma pauperis (IFP) 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. See Neitzke v. Williams, 490 U.S. 

319 (1989). To authorize a litigant to proceed IFP, 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); 
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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 fees or give security therefor.” Id. § 1915(a). Here, the Plaintiff’s Motion establishes 

that he is unable to prepay the filing fee.

The inquiry does not end there, however. District courts have the power under 

§ 1915(e)(2)(B) 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). 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). Luevano v. Wal-Mart Stores, Inc., 722 

F.3d 1014, 1018, 1027 (7th Cir. 2013).

To state a claim under the federal notice pleading standards, a complaint must 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 Serv., Inc., 496 F.3d 

773, 776–77 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

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). 

In an August 5, 2016 Order, Judge Moody ordered the Plaintiff’s initial Complaint 

stricken because it was nearly 100-pages long and included “recitations of legal conclusions . . . 

[but] hardly any factual allegations.” (Order 2, ECF No. 4.) The Plaintiff was given opportunity 
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to file the First Amended Complaint [ECF No. 5], which the Plaintiff did on August 29, 2016. 

While it was shorter, the First Amended Complaint still relied on legal conclusions and failed to 

provide clear factual allegations suggesting entitlement to relief. The Court denied this First

Amended Complaint on October 28, 2016 [ECF No. 9].

On November 28, the Plaintiff filed a Second Amended Complaint [ECF No. 10]. The 

Plaintiff’s apparent legal theory is that all of the Defendants are liable for violating his civil 

rights based on their various roles in the Order of Protection proceedings. The Plaintiff in his 

Complaint couches little more than names and dates amid an endless string of legal conclusions. 

Absent factual allegations to support his legal conclusions, the Plaintiff’s entitlement to relief 

does not rise above the “merely speculative” level. Tamayo, 526 F.3d at 1083. Furthermore, the 

Plaintiff has not established how one of the defendants, Penny K. Hix, a waitress, violated his 

rights under 42 U.S.C. § 1983. The Plaintiff does not proffer sufficient factual allegations that 

Hix as private citizen engaged in state action in such a way as to become a proper § 1983 

defendant. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 823 (7th Cir. 2009). 

Accordingly, the Second Amended Complaint is dismissed for failure to state a claim upon 

which relief can be granted. Furthermore, the claims against Penny K. Hix are dismissed with 

prejudice.

Given the aforementioned, the Plaintiff’s request to proceed without prepayment of fees 

is denied, and the Amended Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

The Court grants the Plaintiff until February 13, 2017, to file an amended complaint. See 

Luevano, 722 F.3d at 1022 (stating that a litigant proceeding under IFP statute has the same right 

to amend a complaint as fee-paying plaintiffs have). When drafting his amended complaint, the 

Plaintiff should state the key facts supporting his claim, rather than merely provide legal 
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conclusions. Additionally, the Plaintiff should specify which Defendants the claims are asserted 

against and what each Defendant did in relation to that claim, including the date it happened. 

Along with an amended complaint, the Plaintiff must also file a new Petition to Proceed Without 

Prepayment of Fees and Costs or pay the filing fee. If the Plaintiff does not file an amended 

complaint by February 13, 2017, the Court will direct the Clerk to close this case. Should he 

choose, the Plaintiff is permitted to pursue his claims in state court. See Doe-2 v. McLean Cnty. 

Unit Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 513 (7th Cir. 2010). 

For the foregoing reasons, the Court DISMISSES the Second Amended Complaint [ECF 

No. 10] and DISMISSES WITH PREJUDICE the claims against Penny K. Hix. The Court 

DENIES the Plaintiff’s Motion for Leave to Proceed in forma pauperis [ECF No. 11]. The Court 

GRANTS the Plaintiff until February 13, 2017, to file an amended complaint, accompanied by a 

new Petition to Proceed Without Prepayment of Fees and Costs or the filing fee;

SO ORDERED on January 13, 2017. 

s/ Theresa L. Springmann

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT