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Dicosimo v. Town of Menasha Police Department

United States District Court, E.D. Wisconsin

June 10, 2016

NATHANIEL JOSEPH DICOSIMO, Plaintiff
v.
TOWN OF MENASHA POLICE DEPARTMENT, BRIDGET K. VANSTRATEN, ROD MCCANTS, Chief of Police Town of Menasha, GARY CUTLER, Lt. Town of Menasha PD, RICK LENEAU, Lt. Town of Menasha PD, PETER DEROER, Lt. Town of Menasha PD, JASON SEVERSON, Lt. Town of Menasha PD, EVAN MERKES, Police Officer Town of Menasha, CHRIS BRANDT, Police Officer Town of Menasha, THOMAS TRELANGO, Police Officer Town of Menasha, GERARD STEPHANIE, Police Officer Town of Menasha, ERWIN CLAY DAVIS, Police Officer Town of Menasha, SCOTT BLASHKA, Police Officer Town of Menasha, SEELY MOE, Police Officer Town of Menasha, and COREY COLBURN, Police Officer Town of Menasha, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), GRANTING PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME TO PAY THE FILING FEE (DKT. NO. 15), DENYING PLAINTIFF’S MOTION TO EXTEND DISCOVERY (DKT. NO. 13), DENYING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT (DKT. NO. 14), AND DISMISSING CASE WITHOUT PREJUDICE FOR LACK FOR LACK OF SUBJECT MATTER JURISDICTION

          HON. PAMELA PEPPER United States District Judge

         The pro se plaintiff, Nathaniel Joseph Dicosimo, was confined at the Winnebago County Jail when he filed the complaint. He has been released from jail and now resides in Oshkosh, Wisconsin. The plaintiff filed this lawsuit alleging that the defendants violated his rights under federal law and Wisconsin state law.

         I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         The 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.

         On December 29, 2015, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $44.60. 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 appeal).

         The court notes that the plaintiff filed a letter asking the court to give him more time to pay the balance of the filing fee. Dkt. No. 15. This motion was not necessary, but the court will grant the motion, and again, allow the plaintiff to pay the balance of the filing fee as he is able.

         II. REVIEW OF THE PLAINTIFF’S COMPLAINT

         The law 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. § 1915A(b).

         A claim 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) (citations omitted).

         To 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 (citation omitted).

         In 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)).

         To 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).

         A. Allegations in the Complaint

         The plaintiff alleges that beginning in September 2015, defendant Bridget K. VanStraten made several false allegations/reports against him. According to the plaintiff, defendant VanStraten reported to the police that the plaintiff was using drugs, had taken out a fraudulent loan, and had stolen Adderall from her. She also allegedly hacked the plaintiff’s Facebook account, his emails, and his wireless phone account. The plaintiff alleges that defendant VanStraten “harassed me non-stop through law enforcement, threatening text messages, and phone calls.” Dkt. No. 1 at 5. He further alleges that VanStraten called him in for drinking-and-driving seven times. Additionally, the plaintiff alleges that she lied under oath in a hearing for a restraining order he ...


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