Sumner v. McComb et al, No. 3:2009cv00316 - Document 3 (S.D. Ill. 2009)

Court Description: MEMORANDUM AND OPINION, Denying in part and Granting in part 2 MOTION for Leave to Proceed in forma pauperis filed by Barbara L. Crisp Sumner. Denies IFP to the extent this action is against Gary McComb and Steward Childress and dismisses all claim s against those defendants. Clerk of Court is directed to enter judgment accordingly at the close of the case. The Court Grants IFP to the extent this action is against defendant River City Construction. Signed by Judge J. Phil Gilbert on 5/20/09. (bkl)

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS BARBARA L. CRISP SUMNER, Plaintiff, v. Case No. 09-cv-316-JPG GARY MCCOMB, RIVER CITY CONSTRUCTION and STEWART CHILDRESS, Defendants. MEMORANDUM AND ORDER This matter comes before the Court on plaintiff Barbara L. Crisp Sumner s motion for leave to proceed in forma pauperis (Doc. 2). Sumner has attempted to plead claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for sexual harassment, retaliation for complaining of sexual harassment and age, sex and race discrimination for her failing to be recalled to work after a layoff. A federal court may permit an indigent party to proceed without pre-payment of fees. 28 U.S.C. § 1915(a)(1). Nevertheless, a court can deny a qualified plaintiff leave to file in forma pauperis or can dismiss a case if the action is clearly frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i). The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller, 708 F.2d 1241, 1247 (7th Cir. 1983). When assessing a petition to proceed in forma pauperis, a district court should inquire into the merits of the petitioner s claims, and if the court finds them to be frivolous, it should deny leave to proceed in forma pauperis. Lucien v. Roegner, 682 F.2d 625, 626 (7th Cir. 1982). The Court is satisfied from Sumner s affidavit that she is indigent. However, the Court finds that her claims against defendants Gary McComb and Stewart Childress are frivolous. An individual is not an employer under Title VII and therefore cannot be liable under the statute. Williams v. Banning, 72 F.3d 552, 554-55 (7th Cir. 1995); see Robinson v. Sappington, 351 F.3d 317, 332 n. 9 (7th Cir. 2003). For this reason, the Court DENIES in part Sumner s motion for leave to proceed in forma pauperis (Doc. 2) to the extent that this action is against Gary McComb and Stewart Childress and DISMISSES all claims against those defendants. Those defendants are terminated from this action and the Clerk of Court is DIRECTED to enter judgment accordingly at the close of the case. As to Sumner s claims against River City Construction, the Court does not find anything in the file to indicate that those claims are frivolous or malicious. Therefore, the Court GRANTS in part Sumner s motion for leave to proceed in forma pauperis (Doc. 2) to the extent that this action is against defendant River City Construction. The Court notes, however, that should it become apparent that the action is frivolous or malicious at any time in the future, it may reconsider this ruling, assess the full filing fee and dismiss the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The plaintiff having been granted leave to proceed in forma pauperis against River City Construction, the Court must order service of process by a United States marshal or deputy marshal or other specially appointed person. Fed. R. Civ. P. 4(c)(3). If the plaintiff wishes the United States Marshal Service to serve process in this case, the Court DIRECTS the plaintiff to provide to the United States Marshal Service the summons issued in this case, the appropriately completed USM-285 forms and sufficient copies of the complaint for service. The Court further DIRECTS the United States Marshal, upon receipt of the 2 aforementioned documents from the plaintiff and pursuant to Federal Rule of Civil Procedure 4(c)(3), to serve a copy of summons, complaint and this order upon the defendant in any manner consistent with Federal Rule of Civil Procedure 4, as directed by the plaintiff. Costs of service shall be borne by the United States. IT IS SO ORDERED. DATED: May 20, 2009 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE 3

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