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Brown v. Milwaukee County Public Defenders Office

United States District Court, E.D. Wisconsin

July 18, 2016

ENNIS LEE BROWN, Plaintiff,
v.
MILWAUKEE COUNTY PUBLIC DEFENDERS OFFICE, MARK ROSEN, JEREMY PERRI, MARIA STEPHENSON, KELLI THOMPSON, JOSEPH E. EHMANN, and JANE/JOHN DOE, Defendants.

         DECISION 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

          HON. PAMELA PEPPER United States District Judge

         The 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.

         I. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF FILING FEE

         The 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.

         On June 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.

         II. SCREENING OF PLAINTIFF'S COMPLAINT

         A. Standard for Screening Complaints

         The 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 U.S.C. §1915(e)(2)(B).

         To 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.

         Federal 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, 106 (1976)).

         B. Facts Alleged in the Complaint

         The plaintiff is incarcerated at Waupun Correctional Institution. Dkt. 1 at 1. The defendants are: the Milwaukee County Public Defender's Office[1]; 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.

         The 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 (E.D. Wis.).[2]

         In this 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 ...


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