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Boje v. Remington

United States District Court, E.D. Wisconsin

May 16, 2016

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

DECISION AND ORDER SCREENING AND DISMISSING THE PLAINTIFF’S 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. On March 15, 2016, the court issued a screening order identifying several deficiencies in the plaintiff’s original complaint, and allowing the plaintiff to file an amended complaint with additional facts supporting his claim. Dkt. No. 9. The plaintiff filed his amended complaint on March 28, 2016. Dkt. No. 10. He also filed a second motion to proceed in forma pauperis that same date. Dkt. No 11. The order denies as moot the plaintiff’s second motion to proceed in forma pauperis, and screens and dismisses the plaintiff’s amended complaint for failure to state a claim.

I. IN FORMA PAUPERIS STATUS

The Prison Litigation Reform Act (“PLRA”) applies to this action because the plaintiff filed his complaint while incarcerated. 28 U.S.C. § 1915. The PLRA allows a court to grant 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 March 15, 2016, the court granted the plaintiff’s motion to proceed in forma pauperis. Dkt. No. 9. Accordingly, the court denies as moot (unnecessary) his second motion to proceed in forma pauperis. Dkt. No. 11.

II. SCREENING OF PLAINTIFF’S AMENDED COMPLAINT

A. Standard for Screening Complaints

The PLRA 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. The factual allegations must “raise a right to relief above the speculative level, and, when accepted as true, must state a claim that is “plausible on its face.” Twombly, 550 U.S. at 555; 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 supported 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

Around 11:00 a.m. on October 21, 2012, Nichols Lehrke recorded a conversation between the plaintiff and Lehrke on Lehrke’s own hand held recording device. Dkt. No. 10 at 2. In the conversation, the plaintiff admitted that he participated in a burglary in 2011. Id. The plaintiff was not aware that Lehrke recorded him and the plaintiff did not give Lehrke permission to record him. Id. at 2-3.

On October 22, 2012, Lehrke brought the recording of the plaintiff to the police headquarters and played it for Detective Tamara Remington. Id. at 3. Lehrke allowed Remington to make her own copy of the tape recording in exchange for leniency in his unrelated criminal case. Id. Remington then forwarded her copy of the tape recording to the Assistant District Attorney ...


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