United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motion of plaintiff
Kierra Shanta Martin for leave to proceed in forma pauperis in
this civil action. Upon consideration of the motion and the
financial information provided in support, the Court
concludes that plaintiff is unable to pay the filing fee. The
motion will therefore be granted. Additionally, the Court
will dismiss the complaint, without prejudice.
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted. An action is frivolous if it “lacks an
arguable basis in either law or fact.” Neitzke v.
Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief may be granted if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
Court must liberally construe complaints filed by laypeople.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
means that “if the essence of an allegation is
discernible, ” the court should “construe the
complaint in a way that permits the layperson's claim to
be considered within the proper legal framework.”
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). However, even pro se complaints must allege facts
which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113 (1993).
brings the instant action against one Robert L. Swearingen,
who plaintiff indicates is an attorney with Legal Services of
Eastern Missouri (also “LSEM”). Plaintiff avers
that she and Mr. Swearingen are Missouri citizens. She avers
this Court has federal question jurisdiction over her claims,
which she identifies as “Negligence, legal malpractice,
emotional distress, intentional infliction emotional
distress.” (ECF No. 1 at 3). She also states that LSEM
is a federal agency.
statement of claim, plaintiff writes that in 2017 she
“got defraud and illegal enriched” and suffered
“emotional distress pain and suffering” when Mr.
Swearingen “legally represent me fill the correct
information with the courts to fix the judgment that was put
on my name due to writ of error.” Id. at 5.
Plaintiff seeks a total of $15, 000 in damages.
allegations in the complaint are duplicative of those in
Martin v. Swearingen, No. 4:19-cv-314-HEA (E.D. Mo.
Feb. 25, 2019). There, plaintiff alleged she sought legal
services from Mr. Swearingen in 2017, and he caused her
emotional distress because he failed to carefully handle her
case. On May 8, 2019, the Court dismissed the action upon
action will be dismissed for want of jurisdiction. This Court
does not have federal question jurisdiction under 28 U.S.C.
§ 1331 because plaintiff's claims do not arise under
the Constitution or laws of the United States. Plaintiff does
not allege that any of her federally-protected rights were
violated, nor does she allege that Mr. Swearingen acted under
color of state law or took any action that could be
“fairly attributable to the State” as required to
state a claim under 42 U.S.C. § 1983. See West v.
Atkins, 487 U.S. 42, 48 (1988) and Lugar v.
Edmondson Oil Co., Inc. 457 U.S. 922, 937 (1982). This
Court also lacks jurisdiction on the basis of diversity of
citizenship under 28 U.S.C. § 1332. Plaintiff's
claims are premised entirely upon state law, and she clearly
avers that she and the defendant are domiciled in Missouri
and she seeks relief in an amount below the jurisdictional
this Court had jurisdiction over plaintiff's claims, this
action would be dismissed. First, the complaint fails to
state a plausible claim for relief because plaintiff has
failed to plead facts that would allow this Court to
reasonably infer that the defendant is liable for the
misconduct alleged. See Iqbal, 556 U.S. at 678
(“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”). Second, this action is
duplicative of Martin v. Swearingen, No.
4:19-cv-314-HEA, and that dismissal has res judicata effect
on the frivolousness determination of this in forma pauperis
complaint. See Waller v. Groose, 38 F.3d 1007, 1008
(8th Cir. 1994) (per curiam) (citing Denton v.
Hernandez, 504 U.S. 25 (1992)); see also Cooper v.
Delo, 997 F.2d 376, 377 (8th Cir. 1993) (§ 1915(e)
dismissal has res judicata effect on future IFP petitions).
Finally, plaintiff appears to attempt to bring this action on
behalf of another person, which is impermissible. While
federal law authorizes plaintiff to plead and conduct her own
case personally, 28 U.S.C. § 1654, she is not a licensed
attorney and therefore may not represent another individual
in federal court. See Lewis v. Lenc-Smith Mfg. Co.,
784 F.2d 829, 830 (7th Cir. 1986) (a person who is not
licensed to practice law may not represent another individual
in federal court).
IT IS HEREBY ORDERED that plaintiff's
motion for leave to proceed in forma ...