United States District Court, W.D. Missouri, Southern Division
P. RUSH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Theresa Barbero's Application for
Leave to File Action Without Payment of Fees. (Doc. 1.) Upon
review, Ms. Barbero will be directed to file an amended
complaint within 21 days.
opportunity to proceed in forma pauperis is a
privilege, not a right.” Weaver v. Pung, 925
F.2d 1097, 1099 n.4 (8th Cir. 1991). The court uses a
two-step process to determine whether a plaintiff should be
granted leave to proceed without payment of fees.
Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th
Cir. 1982). First, the court must decide whether the
plaintiff qualifies by economic status. Id. Local
Rule 83.7(c) provides that that payment of the initial filing
fee should not “cause [the applicant] to give up the
basic necessities of life.” Second, if the plaintiff
qualifies by economic status, the court must assess whether
the action should be dismissed as frivolous or malicious, for
failing to state a claim upon which relief may be granted, or
for seeking relief against an immune party.
Martin-Trigona, 691 F.2d at 857; see also
28 U.S.C. § 1915(e)(2)(B).
on her Affidavit of Financial Status (doc. 1-1), the Court
finds that Ms. Barbero is unable to pay the fees or costs of
this action. Therefore, she qualifies by economic status.
the Court finds that the proposed Complaint (doc. 1-2) does
not state a claim on which relief may be granted. Rule 8(a)
of the Federal Rules of Civil Procedure sets forth the
requirements to state a claim for relief. Rule 8(a)(2)
requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” A
plaintiff must provide “enough facts to state a claim
to relief that is plausible on its face.” Bell.
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint “that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 556 U.S. 662,
preliminary matter, it is unclear what person or company Ms.
Barbero is trying to sue, as there are at least three
different Defendants named in her filings. The caption of the
Complaint (doc. 1-2 at 1) names “TLC Property
Management, LLC” as the Defendant. But, in the body of
the Complaint (doc. 1-2 at 2) and on the Civil Cover Sheet
(doc. 1-3), Sam Coryell is the only Defendant listed. To
confuse matters further, on page one of the Application for
Leave to File Action Without Payment of Fees, Plaintiff lists
“TLC Properties, LLC” as the Defendant.
Therefore, Ms. Barbero will need to specifically identify the
correct defendant(s) in her case and how each was involved in
the Court does not fully understand Ms. Barbero's claims
for relief. She states the federal law at issue includes
“Civil Rights Violations, Fair Housing Act Violations,
Familial and Disability Discrimination, American Disabilities
Act.” (Doc. 1-2 at 3.) However, the Americans with
Disabilities Act (“ADA”), prohibits
discrimination in all areas of public life,
including public accommodations, employment, transportation,
state and local government services, and telecommunications.
Here, Ms. Barbero's claims describe a private dispute
about the timeliness of repairs and different rental charges
at her apartment, and do not affect any of the areas of
public life covered by the ADA. Therefore, based on the
limited facts provided, the ADA does not provide a remedy,
and she has failed to state a claim under the ADA.
Fair Housing Act (“FHA”) may provide a remedy for
Ms. Barbero's claims, as it prohibits discrimination in
housing. Acts prohibited under the FHA include failing or
delaying performance of maintenance or repairs and imposing
different rental charges for the rental of a dwelling.
However, a plaintiff must allege a basis for the
discrimination, such as familial status or handicap.
“Familial status” is defined as one or more
persons under the age of 18 residing with a parent or legal
custodian. Ms. Barbero has stated she has no dependents and
lives alone. Therefore, she cannot claim familial status as a
basis for the alleged discrimination. And, the FHA defines a
handicap as a physical or mental impairment which
substantially limits one or more major life activities. But,
apart from claiming she has an emotional support dog, Ms.
Barbero has not alleged what, if any, physical or mental
impairment she has. As a result, because she has failed to
explain how she is handicapped, she has failed to state a
claim under the FHA. She will therefore need to amend her
complaint to include facts supporting her allegation of
discrimination based on a handicap under the FHA.
it is ORDERED that, within 21 days of the
date of this Order, Ms. Barbero shall file an amended
complaint correcting the deficiencies identified above. If
she fails to file an amended complaint, or if the Court
determines that the amended complaint still does not
adequately state a claim or is otherwise deficient, this case
will be transferred to a district judge for dismissal without
further notice. The Clerk of Court is directed to send a copy
of this Order via regular mail to Ms. Barbero at her last