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Lemons v. Pollard

United States District Court, E.D. Wisconsin

March 2, 2016

LESTER LEMONS, III, and WALTEL DEJESUS, Plaintiffs,
v.
WILLIAM POLLARD, ANTHONY MELI, LT. LARSON, SGT. PETERSON, SGT. SCOUTEN, SGT. PRICE, CO WOLF, CO WINTERS, CO POCH, CO SWIGEN, CO ROSENTHAL, CO LASH, CO BADE, and NURSE JAMESON, Defendants.

ORDER GRANTING PLAINTIFFS’ MOTIONS FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FULL FILING FEE (DKT. NOS. 3, 5) AND SCREENING PLAINTIFFS’ COMPLAINT

HON. PAMELA PEPPER United States District Judge

Plaintiffs Lester Lemons, III and Waltel DeJesus, state prisoners who are representing themselves, filed a complaint under 42 U.S.C. §1983, alleging that their civil rights were violated. Dkt. No. 1. The case is before the court on the plaintiffs’ motions for leave to proceed without prepaying the full filing fee (Dkt. No. 2) and for screening of the plaintiffs’ complaint.

I. MOTIONS FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FULL FILING FEE

The Prison Litigation Reform Act applies to this case because the plaintiffs were incarcerated when they filed their complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the civil case-filing fee, as long as he meets certain conditions. One of those conditions is a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time through deductions from his prisoner account. Id. In a multiple plaintiff prisoner case, each prisoner is required to pay the statutory filing fee of $350.00 over time after paying an initial partial filing fee. See Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004).

On December 23, 2015, the court entered an order requiring Lemons to pay an initial partial filing fee of $0.33. Dkt. No. 8. Lemons paid that fee on February 16, 2016. Accordingly, the court will grant Lemons’ motion for leave to proceed without prepaying the filing fee, and will allow him to pay the balance of the $350.00 filing fee over time from his prisoner account, as described at the end of this order.

On January 7, 2016, the court issued an order requiring DeJesus to pay an initial partial filing fee of $4.62. Dkt. No. 13. DeJesus paid that fee on January 28, 2016. Accordingly, the court will grant DeJesus’s motion for leave to proceed without prepaying the filing fee, and will allow him to pay the balance of the $350.00 filing fee over time from his prisoner account, as described at the end of this order.

II. SCREENING OF THE PLAINTIFFS’ COMPLAINT

A. Standard for Screening Complaints

The law requires the court to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss part or all of a complaint if the plaintiff raises claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).

To state a claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead specific facts, and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint, however, that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

In considering whether a complaint states a claim, courts follow the principles set forth in Twombly. First, the court must “identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id. Second, if there are well-pleaded factual allegations, courts must “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that the defendants: 1) deprived the plaintiff of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). When a plaintiff is representing himself, the court is obliged to give his allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

B. Facts Alleged in the Complaint

The plaintiffs allege that between October 1 and October 30, 2015, officers Wolf, Poch, Peterson, Scouten, Winters, and unnamed officers “openly provoked and threaten[ed]” the plaintiffs because the plaintiffs had filed inmate complaints ...


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