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), DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
12), DENYING PLAINTIFF'S MOTION FOR RELIEF OF
COMMUNICATION BARRIERS (DKT. NO. 13), AND DIRECTING PLAINTIFF
TO FILE AN AMENDED COMPLAINT BY AUGUST 4, 2017
PAMELA PEPPER United States District Judge
Shawn Murphy is representing himself, and is a prisoner at
Waupun Correctional Institution. He filed this lawsuit
alleging that the defendants violated his rights under Title
II of the Americans with Disabilities Act (ADA), 42 U.S.C.
§12132. The case is before the court for a decision on
the plaintiff's request to proceed without prepaying the
full filing fee (Dkt. No. 2), for screening of his complaint
(Dkt. No. 1), and a decision on the plaintiff's motion to
appoint counsel (Dkt. No. 12) and motion for relief of
communication barriers (Dkt. No. 13).
Request to Proceed without Prepaying the Full Filing Fee
(Dkt. No. 2)
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 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 entered an order requiring the
plaintiff to pay an initial partial filing fee of $1.83. Dkt.
No. 6. The plaintiff paid that fee on January 13, 2017.
Accordingly, the court grants his request to proceed without
prepaying the full filing fee and allows him 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 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.
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)). A
complaint that offers “labels and conclusions, ”
however, 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
obligated 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 is incarcerated at Waupun Correctional Institution
(Waupun). Dkt. No. 1 at 1. Defendant Nikki Kamphuis is the
business office manager and ADA coordinator at Waupun.
Id. at 2. Defendant James Muenchow is the
institution complaint examiner there. Id. at 5.
plaintiff has “serious mental health problems, ”
and he allegedly needs “accommodations for equal access
to the court.” Id. at 2. He arrived at Waupun
on March 25, 2014. Id. On May 2, 2014, the plaintiff
asked ADA Coordinator Kamphuis for help to try to fix
“the court mess I found myself in.” Id.
The plaintiff asked for “an accommodation for some kind
of legal aid” because he couldn't help himself due
to his “mental health and documented
limitations.” Id. at 3. Kamphuis denied the
plaintiff's requests, stating that Waupun doesn't
provide help “doing lawsuits.” Id.
28, 2014, the plaintiff asked for more time in the law
library due to problems using the computer (he states that he
could copy only two or three letters at a time). Id.
Kamphuis denied the request. Id. She said she
contacted Waupun's education director to research the
plaintiff's claim that he had learning problems, but she
denied the plaintiff's request for more library time
without documentation. Id. The plaintiff sent a
request slip to Kamphuis, telling her that there were records
at Waupun documenting his learning disorder and mental health
issues. Id. Kamphuis told the plaintiff to provide
her the records, but he couldn't get copies of the
records because he had no income. Id. Kamphuis would
not give the plaintiff a legal loan to get the records.
denied the plaintiff's requests for accommodations on
April 7, 2015; July 2, 2015; September 21, 2015; and November
7, 2015. Id. at 4. At that point, she wouldn't
give him any “DOC-2530 accommodation forms, nor would
she reply to any information request.” Id.
plaintiff asserts that since May 30, 2014, Kamphuis
repeatedly has told the plaintiff that he needed to give her
documentation of his disabilities, and he has responded that
the documentation is in the records at Waupun. Id.
The plaintiff says that he can't get the copies on his
own. Id. He states that he discovered that Kamphuis
was lying to him, because one day he went to library to look
at institution policy on the ADA, and he discovered that
under policy #300.00.35 the ADA coordinator should ...