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Torgerson v. Wall

United States District Court, E.D. Wisconsin

December 1, 2016

KRISTOPHER TORGERSON, Plaintiff,
v.
EDWARD WALL, WILLIAM POLLARD, TONY MELI, JEREMY WESTRA, and CYNTHIA RADTKE, Defendants.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Plaintiff Kristopher Torgerson, a Wisconsin state prisoner who is representing himself, filed a civil rights action under 42 U.S.C. § 1983, alleging that defendants violated his First and Eighth Amendment rights at the Waupun Correctional Institution. This matter comes before me on plaintiff's motion for leave to proceed without prepayment of the filing fee (ECF No. 2) and for screening of the complaint (ECF No. 1).

         Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (“PLRA”) applies to this action because plaintiff was incarcerated when he filed this complaint. 28 U.S.C. § 1915. The law allows inmates to proceed with their lawsuits in federal court without pre-paying the $350 filing fee. Id. The inmate must comply with certain requirements, one of which is to pay an initial partial filing fee. Id.

         On October 26, 2016, I assessed an initial partial filing fee of $11.87. (ECF No. 5). Plaintiff paid that amount on November 9, 2016. Therefore, I will grant plaintiff's motion to proceed without prepayment of the filing fee.

         Screening of the Complaint

         The PLRA requires me 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). I 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, plaintiff must provide me with 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 Atl. 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 me to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 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.

         I follow the two-step analysis set forth in Twobly to determine whether a complaint states a claim. Id. at 679. First, I determine 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, I determine whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” Id. Pro se allegations, “however inartfully pleaded, ” are given a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         Factual Allegations

         In 2014, plaintiff was confined at the Wisconsin Secure Program Facility (“WSPF”). (ECF No. 1, at 2.) While confined at WSPF, plaintiff was charged with a homicide based on a 2012 statement given by Tyshun Meeks implicating plaintiff in the crime. (Id.) Plaintiff received discovery related to the homicide in March 2015, and he learned that two inmates at WSPF had made statements relating to the pending charges. (Id.) Plaintiff wrote to the security office at WSPF requesting two Special Protection Need (“SPN”) forms. (Id.) As a result of plaintiff's SPN requests, plaintiff was placed in Temporary Lock-Up (“TLU”) for his protection. (Id.)

         A few days later, plaintiff was transferred to Waupun Correctional Institution (“WCI”). (Id.) Prison staff at WCI assigned plaintiff to housing in the North Cell Hall (“NCH”). (Id.) After the initial “transition process” was complete, plaintiff would be transferred to either the South Cell Hall (“SCH”) or the Northwest Cell Hall (“NWCH”) where all other inmates are housed. (Id.)

         Plaintiff wrote to Captain Jeremy Westra on April 15, 2015 requesting two SPN forms. (Id.) He explained that Meeks and Robert Reifschneider, a different inmate who was also involved in the homicide, might also be confined at WCI. (Id. at 2-3.) Plaintiff received the SPN forms on April 16, 2015, and he filed the documents that same day explaining that he feared for his safety given that Meeks and ...


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