IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANDREW U.D. STRAW, )

 )

Plaintiff, ) 

v. ) NO. 3:16-CV-276

 )

THOMAS M. DIXON, BRENDA )

SCONIERS, AND BRENDA F. )

RODEHEFFER, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the First Amended Complaint

and Petition to Proceed without Pre-Payment of Fees and Costs,

filed by Plaintiff, Andrew U.D. Straw, on May 28, 2016, and May 9,

2016, respectively. (DE #2 & DE #6.) For the reasons set forth

below, the Court:

(1) DISMISSES the amended complaint (DE #6); 

(2) DENIES Plaintiff’s request to proceed in forma pauperis

(DE #2);

(3) GRANTS Plaintiff until August 29, 2016, to submit a second

amended complaint along with payment of the filing fee; and 

(4) CAUTIONS Plaintiff that if he does not do so by that

deadline, this case will be dismissed without further notice.

Plaintiff filed a complaint and a motion to proceed in forma

pauperis (“IFP”) on May 9, 2016. (DE #1 & DE #2.) He filed an

amended complaint on May 28, 2016. (DE #6.) The IFP statute, 28

U.S.C. section 1915, allows an indigent plaintiff to commence a
civil action without prepaying the administrative costs (e.g.

filing fee) of the action. See 28 U.S.C. section 1915(a)(1); see

also Denton v. Hernandez, 504 U.S. 25, 27 (1992). When presented

with an IFP application, the district court must make two

determinations: (1) whether the suit has sufficient merit; and (2)

whether the plaintiff’s poverty level justifies IFP status. See 28

U.S.C. section 1915(e)(2); Denton, 504 U.S. at 27; Smith-Bey v.

Hosp. Adm’r, 841 F.2d 751, 757 (7th Cir. 1988). If a court finds

that the suit lacks sufficient merit or that an inadequate showing

of poverty exists, the court must deny the IFP petition. See

Smith-Bey, 841 F.2d at 757. 

A court must dismiss a case at any time, notwithstanding any

filing fee that may have been paid, if it determines that the suit

is frivolous, malicious, or fails to state a claim upon which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B). An action is

frivolous if “it lacks an arguable basis either in law or in fact.” 

Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim that “no

reasonable person could suppose to have any merit” is considered

frivolous. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). 

To determine whether the suit states a claim under 28 U.S.C.

section 1915(e)(2)(B)(ii), a court applies the same standard as it

would to a motion to dismiss filed pursuant to Federal Rule of

Civil Procedure 12(b)(6). DeWalt v. Carter, 224 F.3d 607, 611 (7th

Cir. 2000). In deciding a motion to dismiss under Rule 12(b)(6),

a court must accept all well-pleaded factual allegations as true

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and view them in the light most favorable to the plaintiff. 

Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1027 (7th Cir.

2013). To survive dismissal, a “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) (internal quotation marks and citation omitted). A

plaintiff “must plead some facts that suggest a right to relief

that is beyond the ‘speculative level.’” Atkins v. City of

Chicago, 631 F.3d 823, 832 (7th Cir. 2011). “This means that the

complaint must contain allegations plausibly suggesting (not merely

consistent with) an entitlement to relief.” Lavalais v. Village of

Melrose Park, 734 F.3d 629, 632-33 (7th Cir. 2013) (internal

quotation marks and citation omitted). 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) (internal quotation marks and

citation omitted). 

In this case, as to the financial prong of the analysis,

Plaintiff indicates that he is unemployed but has received a total

of $25,944 from various “self-employment” sources1

 over the last

twelve (12) months, including Social Security Disability Insurance

in the amount of $13,344. (DE #2, p. 1.) He indicates that he has

1

 He lists “Disability Human Rights Violators (no tax) 2x in December

2015” in the amount of $10,000, an “NZ Forgery Verification Project in May of

2016” in the amount of $100, and “Ukrainian Asylum Seekers, Immigration Case

October 2015” in the amount of $2,500. (DE #2. p. 1.) 

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$579.76 in a checking account, and that he is not supporting any

dependants. (Id. at 2.) 

The federal poverty guideline for a household of one living in

Indiana is $11,880. ANNUAL UPDATE OF THE HHS POVERTY GUIDELINES, 81 Fed.

Reg. 4036 (Jan. 25, 2016). The annualized value of Plaintiff’s

social security disability benefit income alone is above the

federal poverty guideline. Thus, the Court finds that Plaintiff is

not financially eligible to proceed IFP in this case, and the

motion must be DENIED on that basis. 

Furthermore, as to the sufficiency prong of the analysis, in

his amended complaint, Plaintiff has sued three parties, Thomas M.

Dixon (“Dixon”), Brenda Sconiers (“Sconiers”), and Brenda F.

Rodeheffer (“Rodeheffer”) (collectively, “Defendants”). Although

the complaint is thirty-three pages long with an additional three

hundred and thirty-nine pages attached as exhibits, much of the

factual detail does not apply to Defendants in the context of

Plaintiff’s current alleged cause of action, which he describes as

a “diversity suit that the defendants violated [his] right to be

free from embarrassment, annoyance, ridicule, and costs in the form

of Abuse of Process under the tort law of the State of Indiana” and

“violations of my disability civil rights by the ADA Coordinator of

the Indiana Supreme Court.” (DE #6, p. 1.) In the jurisdiction

and venue section of the amended complaint, Plaintiff reiterates

that this is a “diversity action with an amount over $75,000 at

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issue,” and he describes Defendants as all being “Indiana

residents” and himself as an “Illinois resident.” (Id. at 32.)

Amidst a plethora of irrelevant autobiographical and other

background information, it appears that Plaintiff’s amended

complaint takes issue with the actions performed by Defendants

surrounding a malpractice lawsuit that Dixon filed on behalf of

Sconiers against Plaintiff in October of 2013. Judge Jon E.

DeGuilio succinctly described the history of that malpractice case

in a previous lawsuit Plaintiff filed against these same Defendants

as follows: 

[T]he legal malpractice action was filed by

Sconiers, with the assistance of her attorney

Thomas Dixon, after Sconiers missed the filing

deadline for suing the St. Joseph County

Public Library for alleged sexual harassment. 

This malpractice action was filed against

Straw premised on his alleged failure to

timely file Sconiers’ complaint against the

Library; however, Straw asserts that the

action is frivolous because although he

represented Sconiers in pre-suit settlement

discussions with the Library, Straw did not

agree to represent Sconiers beyond the

attempted settlement. According to Straw, he

did not agree to file a lawsuit against the

Library on Sconiers’ behalf because he does

not engage in trial work-the means by which

Straw accommodates his disability.

Straw v. Sconiers, No. 3:14-CV-1772-JD, 2014 WL 7404065, at *2

(N.D. Ind. Dec. 30, 2014).2

 While the malpractice action was

2

 Judge DeGuilio described Plaintiff’s claims, which he originally

brought under Title II and IV of the Americans with Disabilities Act, as

“utterly frivolous” and dismissed the complaint for a lack of subject matter

jurisdiction or, in the alternative, for failing to state a claim. Id. at *1. 

Plaintiff later sought to amend his complaint to allege claims of intentional

infliction of emotional distress and constitutional torts pursuant to 42

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pending in St. Joseph Superior Court, Case No. 71D07-1310-CT000265, Plaintiff filed a “Petition for Redress of Grievances” with

the Clerk of the Indiana Supreme Court on August 15, 2014,

declaring that the Indiana Supreme Court had discriminated against

him during his tenure as a State Court Administration employee in

2000-2002, during the bar application process in 2002, and for

several years afterwards. (DE #6, pp. 15-16; DE #6-4.) On

September 3, 2014, Rodeheffer, whom Plaintiff describes as the “ADA

Coordinator of the Indiana Judicial Branch,” filed a request for an

investigation into Plaintiff’s conduct with the Indiana Supreme

Court Disciplinary Commission. (DE #6, p. 16; DE #6-5.) In it,

Rodeheffer states that Plaintiff’s “mental health problems have

become sufficiently severe that I believe he is not competent to

practice law.” (DE #6-5.) She describes numerous lawsuits that

Plaintiff has filed as “nonsensical,” and she references the

Sconiers malpractice action. (Id.)3

 That same day, Rodeheffer

U.S.C. section 1983 based on the same general conduct, but Judge DeGuilio

agreed with the magistrate judge who denied the motion to amend because the

proposed amended complaint “simply repackage[d] the same conclusory, frivolous

claims previously rejected by this Court.” Straw v. Sconiers, No.

3:14-CV-1772-JD, 2015 WL 7738042, at *2 (N.D. Ind. Dec. 1, 2015). The action

before Judge DeGuilio was subsequently voluntarily dismissed by Plaintiff

because he indicated that he preferred to litigate the claims in a separate

case that he had filed in the Southern District of Indiana. See Straw v.

Sconiers, No. 3:14-CV-1772-JD at docket entry numbers 56, 58, and 59. The

Southern Indiana case was ultimately terminated after that court granted

motions to dismiss filed by the various defendants. Straw v. Ind. Supreme

Ct., No. 1:15-CV-01015-RLY-DKL, 2016 WL 344720, at *1 (S.D. Ind. Jan. 28,

2016). 

3

 The disciplinary complaint against Plaintiff, number

98S00-1601-DI-12, is still pending. See Indiana Roll of Attorneys, 

https://publicaccess.courts.in.gov/docket/Search/Detail?casenumber=98S001601DI

00012 (last accessed July 26, 2016). 

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sent Dixon an email stating, “[a]s a courtesy, I just wanted to let

you know that I filed a disciplinary charge against Mr. Straw today

and included pleadings from the federal case he filed against you

and your client.” (DE #6, p. 17; DE #6-6.) Plaintiff alleges that

Dixon entered the disciplinary complaint into the malpractice

action even though it was “irrelevant to the contractual question

and the tort question surrounding Sconiers’ case” and that it was

only done so to “‘showcase’ [his] mental disability in such a

manner that was meant to ‘embarrass, annoy, or ridicule’ [him].” 

(DE #6, pp. 17-18.) According to Plaintiff, after the disciplinary

action was placed into the malpractice case, his insurance company

“wanted to settle the case rather than fight it.” (DE #6, p. 18.) 

He indicates that the “case was settled and stipulation to that

effect was entered and the ORDER of dismissal entered with

prejudice on July 15, 2015.” (Id. at 22.) 

Plaintiff describes his claim against Dixon in Count I as

“abuse of process” based on the fact that Dixon “put[] Rodeheffer’s

Indiana Supreme Court disciplinary complaint into the malpractice

suit” in order to “‘embarrass, annoy, and ridicule’ [Plaintiff] and

make it look to [Plaintiff’s] insurance company that the appellate

courts in Indiana are biased against [Plaintiff].” (Id. at 23-24.) 

The claim against Sconiers in Count II is also described as one for

abuse of process in that, according to Plaintiff, she is

“responsible for her lawyer, who is her personal agent” who “used

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inappropriate, biased material and violated [Plaintiff’s] civil

rights in order to get money from [Plaintiff’s] insurance company

that she did not deserve.” (Id. at 27.) Finally, the claim

against Rodeheffer in Count III states that Rodeheffer

discriminated against Plaintiff in “several different forms and

helping Dixon to achieve abuse of process was one. Rodeheffer is

responsible for suborning the abuse of process that Dixon did.” 

(Id. at 28.) Plaintiff also alleges that Rodeheffer is “personally

responsible for violating my rights under the ADA, Title II, the

ADA’s retaliation provisions, and the Rehabilitation Act of 1973,

Section 504.” (Id.) 

Plaintiff, a currently licensed attorney, has stated

specifically in his amended complaint that his lawsuit is based on

state law tort claims and that this Court’s jurisdiction is

premised upon diversity. However, he has not adequately alleged

diversity of citizenship between the parties to ensure that this

Court has jurisdiction over such an action. Under 28 U.S.C. §

1332(a)(1), a federal district court has “original jurisdiction of

all civil actions where the matter in controversy exceeds the sum

or value of $75,000, exclusive of interest and costs, and is

between citizens of different States.” (emphasis added). When a

district court’s jurisdiction is based on 28 U.S.C. § 1332, there

must be complete diversity of citizenship between the opposing

parties. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752,

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758 (7th Cir. 2009). In other words, the citizenship of each

plaintiff must be diverse from the citizenship of each defendant. 

Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 

Here, Plaintiff simply alleges that Defendants are residents

of Indiana and that he is a resident of Illinois. This is not

sufficient. See 28 U.S.C. § 1332; Steigleder v. McQuesten, 198

U.S. 141, 143 (1905); Meyerson v. Harrah’s E. Chicago Casino, 299

F.3d 616, 617 (7th Cir. 2002); Tylka v. Gerber Prods. Co., 211 F.3d

445, 448 (7th Cir. 2000). Plaintiff has not established that

diversity jurisdiction exists, and therefore his amended complaint

must be DISMISSED for lack of subject matter jurisdiction. 

Even if Plaintiff had properly alleged that diversity

jurisdiction exists, he has failed to state a claim for abuse of

process. In Indiana, 

[a]n action for abuse of process requires a

finding of misuse or misapplication of process

for an end other than that which it was

designed to accomplish. An action for abuse

of process has two elements: (1) ulterior

purpose or motives, and (2) a willful act in

the use of process not proper in the regular

conduct of the proceeding. However, if a

party’s acts are procedurally and

substantively proper under the circumstances,

then that party’s intent is irrelevant. A

party may not be held liable for abuse of

process if the legal process has been used to

accomplish an outcome which the process was

designed to accomplish. 

E. Point Bus. Park, LLC v. Priv. Real Est. Holdings, LLC, 49 N.E.3d

589, 604-05 (Ind. Ct. App. 2015) (internal citations omitted). 

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Here, as to Sconiers and Dixon, Plaintiff alleges that they

committed an abuse of process when Dixon inserted the disciplinary

complaint filed by Rodeheffer into the malpractice action that was

then pending against Plaintiff. However, it is both a regular and

legitimate use of process to enter relevant materials into a court

record in order to facilitate a favorable decision in ones own

case. While Plaintiff alleges that the disciplinary complaint was

“absolute[ly] irrelevan[t]” to the malpractice action, an

attorney’s history of professional conduct, or possible lack

thereof, is certainly relevant to a malpractice action, especially

one premised upon an attorney’s alleged failure to act accordingly

on his client’s behalf with regard to a statute of limitations. 

Nothing in the amended complaint suggests that the legal process

used by Sconiers and Dixon was procedurally or substantively

improper. See Cent. Nat’l Bank of Greencastle v. Shoup, 501 N.E.2d

1090, 1095 (Ind. Ct. App. 1986) (“[a] regular and legitimate use of

process, though with an ulterior motive or bad intention is not a

malicious abuse of process”); see also Crenshaw v. Antokol, No.

3:04-CV-182-PS, 2005 WL 6088857, at *8 (N.D. Ind. Mar. 29, 2005)

(dismissing the plaintiff’s abuse of process claims because she had

“at most, alleged only an ulterior purpose” and had not properly

alleged that the defendants “used legal process in a way that was

not proper in the normal prosecution of the case”). As to

Rodeheffer, while Plaintiff alleges that she “help[ed] Dixon to

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achieve abuse of process” by providing him with a copy of the

disciplinary complaint, such a deed is not the type of “process”

contemplated by case law in abuse of process suits. As noted by

the Indiana Court of Appeals, process has been defined as the “use

of the judicial machinery” which “includes actions undertaken by a

litigant in pursuing a legal claim.” Reichhart v. City of New

Haven, 674 N.E.2d 27, 32 (Ind. Ct. App. 1996) (citation and

internal quotation marks omitted). Rodeheffer’s email to Dixon was

neither sent in the context of pursuing a legal claim nor did it

utilize judicial machinery, so it did not constitute a “judicial

process” that would form the basis of a valid claim. Thus,

Plaintiff has failed to state a claim for abuse of process against

any of the Defendants. 

Furthermore, in the event that, despite his averments of

jurisdiction based on diversity, Plaintiff is attempting to bring

federal claims against Dixon and Sconiers pursuant to the Americans

With Disabilities Act (“ADA”), he has already been informed by

Judge DeGuilio in his previous lawsuit why those claims are

frivolous.

The ADA currently addresses employment in

Title I, public entities and services in Title

II, providers of public accommodations and

services in Title III, telecommunications in

Title IV, and contains other miscellaneous

provisions, including an anti-retaliation and

coercion provision, in Title V. . . . Even

assuming that Straw is disabled within the

meaning of the ADA, he has not alleged, nor

even suggested that Sconiers or Dixon are

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covered employers or similar agencies under 42

U.S.C. § 12111, are considered public entities

or places of public accommodation, or that

they provide public services, programs or

activities, such that either one of them would

be subject to the requirements of the ADA. . .

. Simply put, Straw’s claim that Sconiers and

Dixon are subject to the ADA and have violated

the ADA by bringing a legal malpractice

lawsuit against him which thereby causes Straw

to violate his own self-imposed accommodation

against litigation, is utterly frivolous and

fails to allege even a colorable claim arising

under the Constitution or laws of the United

States.

Straw v. Sconiers, No. 3:14-CV-1772-JD, 2014 WL 7404065, at *3-4

(N.D. Ind. Dec. 30, 2014) (internal citations omitted). The same

sound reasoning applies to Plaintiff’s current allegations that

Sconiers and Dixon somehow violated the ADA when Dixon entered

Rodeheffer’s disciplinary complaint into the record of the

malpractice action. Any such claims are frivolous. 

Similarly, as to possible allegations that Rodeheffer

personally4 violated Plaintiff’s rights under the “ADA, Title II,

the ADA’s retaliation provisions, and the Rehabilitation Act of

1973, Section 504” based on the conduct described in the amended

complaint, Plaintiff has been advised that “no claim can be brought

under either of those titles of the ADA or under the Rehabilitation

Act against a defendant in his or her individual capacity.” Straw

v. Ind. Supreme Ct., No. 1:15-CV-1015-RLY-DKL, 2015 WL 9455588, at

4

 In his amended complaint, Plaintiff specifically states that

Rodeheffer is “personally responsible,” so the Court will only address the

alleged claims against her in her individual capacity. (See DE #6, p. 28.)

12
*6 (S.D. Ind. Dec. 23, 2015) (citations omitted). See also Stanek

v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644

(7th Cir. 2015) (“The district court was also correct to dismiss

[the defendants] in their individual capacity for the

discrimination and retaliation claims arising directly under the

Rehabilitation Act and the ADA.”); Walker v. Snyder, 213 F.3d 344,

346 (7th Cir. 2000) (the ADA “addresses its rules to employers,

places of public accommodation, and other organizations, not to the

employees or managers of these organizations”), abrogated on other

grounds by Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001);

Silk v. City of Chicago, 194 F.3d 788, 797 n. 5, 798 n. 7 (7th Cir.

1999) (noting that the ADA and the Rehabilitation Act are “nearly

identical” and must be analyzed under the same standard). Again,

if Plaintiff is attempting to assert claims against Rodeheffer

pursuant to the ADA or Rehabilitation Act in her individual

capacity, such potential claims are without merit.5

 

However, because it is routine practice in this circuit,

Plaintiff will be given an opportunity to amend his complaint. 

Should Plaintiff choose to pay the filing fee and amend his

complaint, he must adequately allege diversity of citizenship

between the parties if he intends to solely bring state law claims. 

5

 Indeed, ADA claims against both Rodeheffer and the Indiana Supreme

Court based on the same substantive conduct as that described in Plaintiff’s

current amended complaint were previously dismissed by Chief Judge Richard L.

Young of the Southern District of Indiana in January of this year. Straw v.

Ind. Supreme Ct., 115-CV-01015-RLY-DKL, 2016 WL 344720, at *4-7 (S.D. Ind.

Jan. 28, 2016). 

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On the other hand, if Plaintiff attempts to bring both state and

federal claims (or just federal claims), he should clarify his

intention in the jurisdiction and venue section of his amended

complaint. Additionally, any claims alleged must have both a

sufficient factual and legal basis as described more fully above.

CONCLUSION

For the aforementioned reasons, the Court:

(1) DISMISSES the amended complaint (DE #6); 

(2) DENIES Plaintiff’s request to proceed in forma pauperis

(DE #2);

(3) GRANTS Plaintiff until August 29, 2016, to submit a second

amended complaint along with payment of the filing fee; and 

(4) CAUTIONS Plaintiff that if he does not do so by that

deadline, this case will be dismissed without further notice. 

DATED: July 27, 2016 /s/RUDY LOZANO, Judge

United States District Court

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