Norman v. NIPSCO
| Decision Date | 08 November 2019 |
| Docket Number | CAUSE NO.: 2:19-CV-365-TLS-JEM |
| Parties | LASUNDRA NORMAN a/k/a Lasandra Norman, Plaintiff, v. NIPSCO and AMERICAN WATER, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Lasundra Norman also known as Lasandra Norman, a Plaintiff proceeding without counsel, filed a Complaint [ECF No. 1] against Defendants NIPSCO and American Water. She also filed a Motion to Proceed In Forma Pauperis [ECF No. 2]. 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 Plaintiff is GRANTED additional time to amend her Complaint, accompanied either by the statutory filing fee or another Motion to Proceed In Forma Pauperis. If Plaintiff fails to amend her Complaint within the time allowed, the Clerk of Court will be directed to close this case without further notice to Plaintiff.
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 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, 324 (1989) (). To authorize a litigant to proceed in forma pauperis, 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); 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 she is unable to prepay the filing fee.
The inquiry does not end there, however. In assessing whether a plaintiff may proceed in forma pauperis, a court must look to the sufficiency of the complaint to determine whether it can be construed as stating a claim for which relief can be granted or seeks monetary relief against a defendant who is immune from such relief. Id. § 1915(e)(2)(B). 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 standard, 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). The 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the complaint, a court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 645 (7th Cir. 2018).
In her Complaint, Plaintiff alleges that she is bringing a class action. Plaintiff then alleges that she is a "forced stakeholder/customer" in the utilities NIPSCO and American Water because they bill her monthly and she has been paying her bill on time for more than ten years. She alleges that these bills cause stress. Plaintiff alleges that, if she and others, mainly in Gary, Indiana, are unable to pay their utility bills, Defendants send "threatening letters with specific date and times on when they will violate my privacy rights by turning my utilities off from the streets." Compl. 2. And, Plaintiff alleges that the utility "bills can start to go up very fast." Id. She further alleges that Defendants have not fixed up neighborhoods. Plaintiff states that she would prefer to pay the government for her utilities. Plaintiff asks that all disconnections scheduled for NIPSCO and American Water be suspended and that all billing be suspended as well. Plaintiff further seeks, on behalf of all residents, a "full refund" for all money paid on NIPSCO and American Water accounts because the bills were for basic essentials of life. Id. Finally, Plaintiff alleges that American Water has "illegally" turned down the water pressure in her house "because of a $60.00 bill." Compl. p. 3.
It appears that Plaintiff is bringing a claim under 42 U.S.C. § 1983 for a violation of constitutional rights. "In order to state a claim under § 1983 a plaintiff must allege: (1) that defendants deprived [her] of a federal constitutional right; and (2) that the defendants acted under color of state law." Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Defendants in this case, NIPSCO and American Water, are private companies, and Plaintiff has not alleged any facts that these private companies were acting under color of state law or in concert with a state actor. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009) (); Johnson v. Dossey, 515 F.3d 778, 782 (7th Cir. 2008) (). Nor are the Defendants state actors merely because they are highly regulated by state law. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926, 1932 (2019) (); Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (same). Because Plaintiff has not shown that Defendants were acting under color of state law, Plaintiff cannot state a claim for a § 1983 violation, and the Court dismisses Plaintiff's § 1983 claims.
Reading the pro se Complaint liberally, Plaintiff may also be bringing state law claims. To the extent that Plaintiff is challenging the disconnection of her utility services, the procedure for a public utility customer to resolve such a dispute with the public utility is governed by Indiana regulations. See 170 Ind. Admin. Code 4-1-16, 6-1-16. The procedure for appealing the resolution of such a dispute with the utility is also governed by Indiana regulations, which allow the customer to file an informal complaint with consumer affairs, the consumer to request a subsequent review by the director of consumer affairs, and consumer affairs to refer a complaint to the Indiana Utility Regulatory Commission (IURC). See 170 Ind. Admin. Code 16-1-5; 170 Ind. Admin. Code 6-1-16(c) (); 170 Ind. Admin. Code 4-1-16(c) (). Review of IURC decisions is made by appeal to the Indiana Court of Appeals. See Ind. Code § 8-1-3-1.
To the extent that Plaintiff is contesting the rates charged by Defendants, utility rates are regulated by the IURC, and, again, review of the IURC's orders takes place in the Indiana Court of Appeals. See NIPSCO Indus. Grp. v. N. Ind. Pub. Serv. Co., 125 N.E.3d 617, 619-20, 623, 623 n. 9 (Ind. 2019) (); see also Ind. Code § 8-1-2-54 (); Ind. Code § 8-1-3-1 (); Ind. Code § 8-1-3-7 (); Bridges v. Veolia Water Indianapolis, LLC, 978 N.E.2d 447, 453-54 (Ind. Ct. App. 2012) (); N. Ind. Pub. Serv. Co. v. Dozier, 674 N.E.2d 977, 983-86 (Ind. Ct. App. 1996) ().
Plaintiff may also be attempting to bring an Indiana common law breach of contract claim or a statutory negligence per se claim for a violation of Indiana law regarding the regulation of public utilities. See, e.g., Simstad v. Scheub, Cause No. 2:07-CV-407, 2010 WL 3894017, at *21 (N.D. Ind. Sept. 30, 2010) (). The Court's original subject matter...
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