United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT
PAMELA PEPPER United States District Judge.
plaintiff, who is representing himself, is a prisoner at
Waupun Correctional Institution (WCI). He filed this lawsuit
under 42 U.S.C. §1983, Dkt. No. 1, along with a motion
for leave to proceed without prepayment of the filing fee,
Dkt. No. 2. This order resolves that request and screens the
Motion for Leave to Proceed without Prepayment of the
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. The PLRA allows a court to
give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as
he meets certain conditions. One of those conditions is that
the plaintiff pay an initial partial filing fee. 28 U.S.C.
August 31, 2016, U.S. Magistrate Judge William Duffin (the
assigned judge at that time) ordered the plaintiff to pay an
initial partial filing fee of $1.32. Dkt. No. 7. That same
day, the plaintiff filed his refusal to consent to
jurisdiction by a magistrate judge, so the clerk's office
reassigned the case to this court. The plaintiff paid the
$1.32 initial partial filing fee on September 12, 2016.
Accordingly, the court will grant the plaintiff's motion.
He will be required to pay the remainder of the filing fee
over time as set forth at the end of this decision.
Screening of the Plaintiff's Complaint
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)).
The Plaintiff's Allegations
plaintiff wrote to health services (HSU) and psychological
services (PSU) and notified them that he was having suicidal
thoughts. As a result, on January 14, 2016, they placed him
on “crushed medication (meds) for his health and safety
. . . .” Dkt. No. 1 at 2. On January 29, 2016, a
nurse (not one of the named defendants) notified the
plaintiff that he was being taken off of crushed meds for
being inappropriate. Id. Defendant Dr. Halper also
notified the plaintiff that he was being taken off of crushed
meds for being inappropriate toward HSU staff. Id.
plaintiff reminded Halper that Halper knew the plaintiff had
a problem with being inappropriate, and questioned why Halper
would take him off of crushed meds when the reason Halper had
placed him on the crushed meds was to keep him from
committing suicide. Id. Halper responded, “Mr.
Collins you did it to yourself and I don't care what you
do I'm just not ...