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Toston v. Zank

United States District Court, E.D. Wisconsin

August 2, 2017

TONI TOSTON, Plaintiff,
v.
PAMELA ZANK, JOHN O'DONOVAN, WILLIAM POLLARD, and JAMES MUENCHOW, Defendants.

         DECISION 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

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         The 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.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         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. §1915(b).

         On 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.

         II. Screening the Plaintiff's Complaint

         The law 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).

         To 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).

         To 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, 106 (1976)).

         A. The Plaintiff's Allegations

         On May 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.

         Defendant 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.

         On June 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 ...


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