4

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JAMES F. OSTERBUR,

Plaintiff,

vs .

STATE OF ILLINOIS,

Defendant.

) FILED MAR 25, 1994

) No. 94-2001

ORDER

The plaintiff, James Osterbur, has brought this federal action, apparently seeking review of a small claims court decision. In his original complaint, the plaintiff claimed that his rights to due process and "to democratic change" had been denied in the state court proceedings. The plaintiff asserted that jurisdiction exists in this court under the removal statute, 28 U.S.C. § 1443(1), and because he had raised a federal question, see 28 U.S.C. § 1331.

By Order of January 11, 1994, the court rejected the complaint, finding no basis for jurisdiction. In its order, the court noted that the plaintiff could not remove a closed case, and that this court has no authority to review the small claims and circuit court proceedings. Nevertheless, the court gave the plaintiff the opportunity to submit an amended complaint and a memorandum of law in support of his claims.

The plaintiff's "writ of right," submitted in response to

the court's order, likewise was rejected, as the court still could not determine either the legal or factual basis for this

lawsuit after reading the plaintiff's rambling documents. However, the court granted the plaintiff one, final opportunity to submit a "basic, coherent complaint." The court cautioned the plaintiff to set forth only the relevant facts underlying this lawsuit and not to make legal arguments. See Order of February 8, 1994.

In response, the plaintiff has submitted a class action complaint on behalf of "the common public citizen." The complaint consists of a series of legal citations and invectives against judicial corruption, "mock justice," and "constitutional piracy." The complaint contains no facts whatsoever in support of the plaintiff's claims. Although the plaintiff has submitted three statements of his claims, the court remains completely at a loss as to what the factual basis for this lawsuit is, or what federal cause of action the plaintiff might have.

It is well established that pro se complaints are to be liberally construed. Haines v. Kerner, 404 U.S. 519 (1972), reh'g denied, 405 U.S. 945 (1972). "[A] district court judge should deny leave to proceed in forma pauperis if an action is frivolous or-malicious." Wartman v. Branch 7, Civil Division, County Court, Milwaukee County, State of Wisconsin, 510 F.2d 130, 134 (7th Cir. 1975), PrinciPle reaffirmed in Bryan v. Johnson, 821 F.2d 455, 458 (7th Cir. 1987).

A frivolous complaint is one in which "the petitioner can make no rational argument in law or facts to support his or her claim for relief." Williams v. Faulkner, 837 F.2d 304, 306 (7th

Cir. 1988), aff'd sub nom Neitzke v. Williams, 490 U.S. 319 (1989). Because the plaintiff is unable to articulate a colorable claim for relief in federal court, the complaint will be dismissed.

IT IS THEREFORE ORDERED that the plaintiff's petition for leave to proceed in forma pauperis is denied pursuant to 28 U.S.C. § 1915. The case is dismissed, without prejudice.

Enter this 25TH day of March 1994 HAROLD A. BAKER

UNITED STATES DISTRICT JUDGE