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Boje v. Remington

United States District Court, E.D. Wisconsin

March 15, 2016

RYAN BOJE, Plaintiff,
v.
TAMARA REMINGTON, Defendant.

DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), SCREENING PLAINTIFF’S COMPLAINT, AND SETTING A DEADLINE OF MONDAY, APRIL 18, 2016, FOR PLAINTIFF TO FILE AN AMENDED COMPLAINT

HON. PAMELA PEPPER United States District Judge

The plaintiff, a state prisoner who is representing himself, filed a complaint alleging that defendant Remington violated his civil rights by recording a tape recording that someone else had made. Dkt. No. 1. This order resolves the plaintiff’s motion for leave to proceed in forma pauperis and screens the plaintiff’s complaint.

I. IN FORMA PAUPERIS STATUS

The Prison Litigation Reform Act applies to this action because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying 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.

On November 4, 2015, the court issued an order finding that the plaintiff lacked the funds to pay an initial partial filing fee, and waiving that fee. Dkt. No. . 7; 28 U.S.C. § 1915(b)(4). The court also gave the plaintiff an opportunity to voluntarily dismiss the case, to avoid incurring a “strike” for filing a frivolous or unfounded lawsuit. Id. The plaintiff has not voluntarily dismissed the comlaint, so the court will grant the plaintiff’s motion for leave to proceed in forma pauperis, and will allow the plaintiff 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 PLAINTIFF’S AMENDED COMPLAINT

A. Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts 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 may dismiss an action or portion thereof if the claims alleged are “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

To state a claim under the federal notice pleading system, plaintiffs must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific facts, and need only provide “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)). “Labels and conclusions” or a “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).

The factual content of the complaint must allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Indeed, allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.

Federal courts follow the two step analysis set forth in Twombly to determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First, the Court determines whether the plaintiff’s legal conclusions are supported by factual allegations. Id. Legal conclusions not support by facts “are not entitled to the assumption of truth.” Id. Second, the Court determines whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” Id. The court gives pro se 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 Proposed Complaint

On October 22, 2012, Nick Lehrke arrived at the Sheboygan Police Department and played a tape recording that he made on a handheld recording device. Dkt. No. 1 at 2. Defendant Tamara Remington, a detective with the Sheboygan Police Department, “tape recorded [the] tape recording” and disclosed its contents to the Sheboygan County District Attorney’s Office. Id. at 1, 3. The complaint provides no further information about the recording. Id. The complaint does not explain, for example, who was recorded, why the individuals were recorded, or how the recording relates to the plaintiff.

The plaintiff alleges that Remington acted outside the scope of her official duties when she “authoriz[ed]…a tape recording made by the consent of one party.” Id. at 1. According to the plaintiff, Remington violated several state wiretapping laws, see Wis. Stats. ยงยง968.28-968.33, as ...


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