United States District Court, E.D. Wisconsin
AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING
ORDER (DKT. NO. 14), DENYING PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION (DKT. NO. 14), SCREENING
PLAINTIFF'S AMENDED COMPLAINT, AND DISMISSING JAMES
MUENCHOW AS A DEFENDANT
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
plaintiff, a Wisconsin state prisoner who is representing
himself, filed this lawsuit under 42 U.S.C. §1983, dkt.
no. 1, along with a motion for leave to proceed without
prepayment of the filing fee, dkt. no. 2. The plaintiff later
filed an amended complaint, dkt. no. 11, and recently filed a
motion for temporary restraining order and motion for
preliminary injunction, dkt. no. 4. This order resolves the
plaintiff's motions and screens his amended complaint.
Motion for Leave to Proceed without Prepayment of the
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 that
the plaintiff pay an initial partial filing fee. 28 U.S.C.
August 19, 2016, the court ordered the plaintiff to pay an
initial partial filing fee of $53.19. Dkt. No. 6. In an order
entered September 1, 2016, the court allowed the plaintiff to
pay the initial partial filing fee from his release account.
Dkt. No. 10. The plaintiff paid the fee on September 19,
2016. Accordingly, the court will grant the plaintiff's
complete motion for leave to proceed without prepayment of
the filing fee. The court will require the plaintiff to pay
the remainder of the filing fee over time as set forth at the
end of this decision.
Screening 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 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. §1915A(b).
state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.(citing
Twombly, 550 U.S. at 556).
proceed under 42 U.S.C. §1983, a plaintiff must allege
that: 1) he was deprived of a right secured by the
Constitution or laws of the United States; and 2) the
defendant was acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The
court gives a pro se plaintiff's 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,
3, 2012, correctional officer Moungey (not a defendant in
this case) conducted a pat search of the plaintiff. Dkt. No.
11 at 1. Moungey's bladed hand made contact with the
plaintiff's testicles twice, even after the plaintiff
alerted Moungey that he had touched his testicles.
Id. The plaintiff felt violated, and filed an inmate
complaint against Moungey. Id.
James Muenchow, an institution complaint examiner, dismissed
the complaint with modification on May 9, 2012. Id.
at 1-2. The modification referred the complaint to the warden
for an investigation (into staff sexual assault, under the
Prison Rape Elimination Act, “PREA”).
Id. at 2.
18, 2012, the plaintiff received a conduct report written by
defendant Pamela Zank, for lying about staff regarding the
plaintiff's report of a sexual assault during a pat
search by Moungey. Id. On June 29, 2012, defendant
Captain John O'Donovan conducted a hearing on the conduct
report, and found the plaintiff guilty of lying about staff.
Id. The plaintiff argued that he never made a
statement outside of the complaint procedure ...