United States District Court, E.D. Wisconsin
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
PAMELA PEPPER United States District Judge.
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).
IN FORMA PAUPERIS STATUS
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.
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.
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, 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).
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. 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)).
Facts Alleged in the Complaint
plaintiff alleges that on October 29, 2013, while
incarcerated at the Dodge Correctional Institution, he tested
positive for “MRSA.” Dkt. No. 1 at 2. Staff
isolated the ...