United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2),
GRANTING MOTION FOR AN EXTENSION OF TIME TO PAY THE FILING
FEE (DKT. NO. 12), AND DISMISSING CASE FOR LACK OF SUBJECT
PAMELA PEPPER United States District Judge
pro se plaintiff, Nathaniel Joseph Dicosimo, was
confined at the Winnebago County Jail when he filed a
complaint alleging that the defendant had taken a series of
actions designed to make him lose custody of his child. Dkt.
No. 1. He since has been released from jail, and now resides
in Oshkosh, Wisconsin. See Dkt. No. 9. The plaintiff
is suing Bridget K. VanStraten, who resides in Menasha,
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915; see Kerr v. Puckett, 138 F.3d
321, 323 (7th Cir. 1998). 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.
January 6, 2016, the court issued an order requiring the
plaintiff to pay an initial partial filing fee of $75.89.
Dkt. No. 14. The plaintiff paid that fee on February 26,
2016. Accordingly, the court will grant the plaintiff’s
motion for leave to proceed without pre-paying the filing
fee. Because the plaintiff has been released from jail, the
court will direct him to submit the remainder of the filing
fee to the Clerk of Court as he is able. See Robbins v.
Switzer, 104 F.3d 895, 897 (7th Cir. 1997) (former
inmate required to pay full filing fee under 28 U.S.C.
§1915(b) because he was a prisoner when he filed
court notes that on May 5, 2016, the plaintiff filed a motion
asking for an extension of time until May 30, 2016 to pay the
filing fee. Dkt. No. 12. He indicates in that motion that now
that he has been released from prison, he must pay child
support from his earnings at Neenah Foundry. Id.
While this motion was not necessary, the court will grant it,
and again, will order that he pay the remainder of the filing
fee as he is able.
REVIEW OF THE PLAINTIFF’S COMPLAINT
the in forma pauperis statute, 28 U.S.C.
§1915(e)(2), the court shall dismiss a case at any time
if it determines that the action is frivolous or malicious,
fails to state a claim upon which relief may be granted, or
seeks monetary relief against a defendant who is immune from
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)). 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 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. 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)).
Allegations in the Complaint
on the complaint allegations, the plaintiff and the defendant
have had a volatile relationship. The complaint describes
domestic disputes, some of which allegedly involve physical
altercations and property damage. For example, the plaintiff
alleges that in September 2015, the defendant got
“extremely angry at our apartment, ” broke a door
off its hinges, and threw a shoe rack, injuring herself in
the process. Dkt. No. 1 at 3. According to the complaint, the
Child Protective Services worker arrived and witnessed the
damage. Id. The plaintiff left the home with their
nine-month-old daughter. He didn’t have anywhere to go,
so he went to his friend’s house. Id.
plaintiff alleges that when he returned to retrieve some of
his property, the defendant had thrown the property on the
front lawn-his own, as well as formula, clothing, wipes,
diapers and other items for his daughter. Id. at 4.
In addition, the defendant allegedly told the
plaintiff’s probation officer that he ...