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Brown v. Duyoung

United States District Court, E.D. Wisconsin

December 21, 2016

ENNIS LEE BROWN, Plaintiff,
v.
JAIMAN DUYOUNG, DR. RICKY SEABULL, DR. THOMAS WILLIAMS, JANE DOE, AND JOHN DOE, Defendants.

         DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1), DISMISSING DEFENDANTS JAIMAN DUYOUNG AND JOHN DOE, DENYING THE PLAINTIFF'S MOTION TO SUBSTITUTE JUDGE (DKT. NO. 7), AND DIRECTING SERVICE ON THE REMAINING DEFENDANTS

          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a civil rights complaint under 42 U.S.C. §1983 alleging that the defendants violated his constitutional rights. Dkt. No. 1. This order resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee (in forma pauperis), screens the plaintiff's complaint, and denies his motion for substitution of judge (Dkt. No. 7).

         I. IN FORMA PAUPERIS STATUS

         The Prison Litigation Reform Act applies to this case because the plaintiff is incarcerated. 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. Id. 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 November 7, 2016, the court assessed an initial partial filing fee of $7.00. Dkt. No. 5. The plaintiff paid that amount on November 17, 2016. Therefore, the court will grant the plaintiff's motion for leave to proceed without prepayment of the filling 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, 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). 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 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. Id. at 679. First, the court determines whether the plaintiff's legal conclusions are supported by factual allegations. Id. Legal conclusions not supported 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 alleges that on October 29, 2013, while incarcerated at the Dodge Correctional Institution, he tested positive for “MRSA.”[1] Dkt. No. 1 at 2. Staff isolated the ...


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