United States District Court, E.D. Wisconsin
SCOTT E. SPATES, Plaintiff,
DR. SAUVEY, Defendant.
AND ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), DENYING AS PREMATURE
THE PLAINTIFF’S MOTION FOR AN ORDER OBTAINING
AFFIDAVITS (DKT. NO. 11), DENYING THE PLAINTIFF’S
MOTION TO APPOINT COUNSEL (DKT. NO. 12), AND SCREENING THE
PAMELA PEPPER United States District Judge
plaintiff, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983, alleging that
the defendant violated his civil rights. Dkt. No. 1. This
order resolves the plaintiff's motion for leave to
proceed in forma pauperis (Dkt. No. 2), denies the
plaintiff’s discovery motion as premature (Dkt. No.
11), denies without prejudice the plaintiff’s motion to
appoint counsel (Dkt. No. 12), and screens the
plaintiff’s complaint (Dkt. No. 1).
MOTION FOR LEAVE TO PROCEED IN FORMA
Prison Litigation Reform Act applies to this action 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 filing fee over time, through
deductions from his prisoner account. Id.
February 16, 2016, the court ordered the plaintiff to pay an
initial partial filing fee of $10.10. Dkt. No. 4. The
plaintiff paid that fee on March 21, 2016. Accordingly, the
court grants the plaintiff’s motion for leave to
proceed in forma pauperis, 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.
SCREENING OF THE PLAINTIFF’S COMPLAINT
Standard for Screening Complaints
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 a complaint or portion thereof 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.
is legally frivolous “‘when it lacks an arguable
basis either in law or in fact.’” Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke
v. Williams, 490 U.S. 319, 325 (1989)). 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)
(internal citations omitted).
state a cognizable 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 Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). However,
a complaint 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 follow
the principles set forth in Twombly. First, they
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.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that the defendants: 1) deprived him 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). The court is
obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded, ” a
liberal construction. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Facts Alleged in the Complaint
complaint alleges that, on August 10, 2014, a nurse (not a
defendant) transported the plaintiff to health services in a
wheelchair after he complained that he could not walk. Dkt.
No. 1 at 3. The plaintiff states that, after the defendant
“pretended to examine” him, she told him ...