United States District Court, E.D. Wisconsin
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, AND
DISMISSING CASE WITHOUT PREJUDICE
PAMELA PEPPER United States District Judge
Ennis Lee Brown, 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
rights under federal and state law. Dkt. No. 1. This order
resolves the plaintiff's motion for leave to proceed
without prepayment of the filing fee (in forma
pauperis) and screens the plaintiff's complaint.
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.
February 2, 2017, the court assessed an initial partial
filing fee of $7.36. Dkt. No. 5. The plaintiff paid $8.00 on
February 10, 2017. 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 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 part or all of a case 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.
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 is incarcerated at the Waupun Correctional
Institution (Waupun). Dkt. No. 1 at 3. He alleges that
Waupun's inmate accounts department illegally took his
money, contrary to Wisconsin law, Wisconsin Department of
Corrections (DOC) policy, Wisconsin Division of Adult
Institutions (DAI) policy, and the plaintiff's judgment
of conviction. Id. According to the plaintiff, on
October 21, 2013, he was sentenced in his state criminal
case, State of Wisconsin v. Brown, Milwaukee County
Case Number 2012CF3796. Id. As part of the
plaintiff's sentence, the court ordered him to pay court
costs, a DNA victim witness surcharge, and fees, under
Wis.Stat. §973.05(4)(b). Id. The
plaintiff's judgment of conviction states that Brown
should “[p]ay applicable costs, surcharges, victim
witness surcharge and assessments. To be paid through
collection by DOC from 25% of funds under Sec
973.05(4)(b).” See Dkt. No. 1-1 at 1-2.
Use of Gifted Funds
plaintiff alleges that when he arrived at Waupun in January
2014, the accounts department began to take money from all
funds, “contrary to the court ordered 25% of earned
funds order Wis.Stat. §973.05(4)(b).” Dkt.
No. 1 at 4 (emphasis added). The plaintiff asked why money
that people had given him as a gift was being used for
obligations; defendant N. Kamphuis responded that “it
must state 25% of earned funds on the J.O.C.”
Id. The plaintiff asserts that Kamphuis refused to
correct the erroneous use of the gifted funds. Id.
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