United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), AND
SCREENING PLAINTIFF’S COMPLAINT (DKT. NO. 1)
PAMELA PEPPER United State Judge.
pro se plaintiff, Myron Mashone Lewis, is confined
at the Milwaukee County Jail. He filed a complaint under 42
U.S.C. §1983, alleging that the defendant violated his
constitutional rights. In this order, the court grants the
plaintiff’s motion to proceed in forma
pauperis (Dkt. No. 2) and screens the plaintiff’s
MOTION FOR LEAVE TO PROCEED IN FORMA
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915. That 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 $350.00 filing fee over time
through deductions from his prisoner account. Id.
April 22, 2016, the court issued an order requiring the
plaintiff to pay an initial partial filing fee of $16.87.
Dkt. No. 5. The plaintiff paid that fee on May 13, 2016.
Accordingly, the court will grant the plaintiff’s
motion for leave to proceed without pre-paying the filing fee
and 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.
SCREENING OF THE PLAINTIFF’S COMPLAINT
allows a 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 a complaint or portion thereof if the
prisoner has raised 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.
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the plaintiff shall provide a “short and plain
statement of the claim showing that [he] is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). The plaintiff need not
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
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that: 1) he was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him by a person or
persons acting 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). The court must give the
plaintiff’s 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)).
plaintiff alleges that between 10:30 a.m. and 11:30 a.m. on
July 27, 2015, defendant Greenfield Police Department
Detective Gregory D. Hoppe, along with other officers,
illegally entered his residence. Dkt. No. 1 at 2. The
plaintiff indicates that he was alleged to be a suspect in an
armed robbery, and that an informant had told defendant Hoppe
that the plaintiff would be inside his residence.
Id. at 3. The plaintiff alleges that defendant Hoppe
and the other officers entered his home without a warrant,
probable cause, exigent circumstances, or ...