United States District Court, E.D. Wisconsin
AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, DENYING
PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 7), AND
DISMISSING CASE WITHOUT PREJUDICE
PAMELA PEPPER United States District Judge
plaintiff, Ennis Lee Brown, is a Wisconsin state prisoner
representing himself. He filed this lawsuit alleging that the
defendants violated his constitutional rights. Dkt. No. 1.
The plaintiff also has filed a motion for leave to proceed
without prepayment of the filing fee (in forma
pauperis). Dkt. No. 2.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF FILING
Prison Litigation Reform Act applies to this action because
the plaintiff was incarcerated when he filed his complaint.
28 U.S.C. §1915. The 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.
2, 2016, the court assessed an initial partial filing fee of
$12.55. Dkt. No. 6. The plaintiff paid that amount on June
24, 2016. Therefore, the court will grant the plaintiff's
motion for leave to proceed without prepayment of the filing
fee, and will 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 PLAINTIFF'S COMPLAINT
Standard for Screening Complaints
Prison Litigation Reform Act 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
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. Indeed, allegations must "raise a right to
relief above the speculative level." Twombly,
550 U.S. at 555. Factual allegations, when accepted as true,
must state a claim that is "plausible on its face."
Iqbal, 556 U.S. at 678.
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 support 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,
Facts Alleged in the Complaint
plaintiff is incarcerated at Waupun Correctional Institution.
Dkt. 1 at 1. The defendants are: the Milwaukee County Public
Defender's Office; Attorney Mark Rosen; Attorney Jeremy
Perri; Maria Stephenson (her real name is Marla Stephenson),
Director of the Appellate Division of the State of Wisconsin
Public Defender's Office; State of Wisconsin Public
Defender Kelli Thompson; Attorney Joseph E. Ehmann; and
Jane/John Doe. Id.
plaintiff alleges that the defendants violated his
constitutional rights. His allegations relate to a state
criminal proceeding and his disagreement with the appointment
of appellate counsel in his criminal appeal. The plaintiff
raised some of these allegations in another case he filed in
this court, Brown v. Hicks, Case No. 15-cv-509-PP
case, the plaintiff alleges that Attorney Ehman violated his
right to due process, and his rights under the First, Fifth,
Sixth, and Fourteenth Amendments, by: (1) assessing the
plaintiff for indigency; (2) getting his permission to
appoint counsel; (3) asking if the plaintiff sought an
appeal; (4) appointing counsel for appeal that he didn't
request; (5) depriving the plaintiff of ...