United States District Court, E.D. Wisconsin
HAROLD C. KIND, JR., Plaintiff,
DEPARTMENT OF CORRECTIONS, Defendant.
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO.
PAMELA PEPPER United States District Judge.
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the Department of Corrections violated his
civil rights. This case comes before the court on the
plaintiff's motion to proceed without prepayment of the
filing fee, dkt. no. 2, and for screening of the
plaintiff's complaint, dkt. no. 1.
THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF
THE FILING FEE
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 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.
March 14, 2017, the court assessed an initial partial filing
fee of $15.83. Dkt. No. 7. The plaintiff paid that amount on
March 29, 2017. 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 THE PLAINTIFF'S COMPLAINT
PLRA also requires courts to screen any complaint brought by
an inmate seeking relief against a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§1915A(a). The court may dismiss a case, or part of it,
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. §1915(e)(2)(B).
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 Atlantic 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
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
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
support 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)).
plaintiff states that the Department of Corrections
(“DOC”) detained him for eighteen months past his
Mandatory Release (“MR”) date. Dkt. No. 1 at 2.
He states that the DOC “took it upon there selves [sic]
to change a judgment of conviction that was placed upon [him]
back in 2005.” Id. He says that he never knew
that the Department of Corrections could override a
judge's decision. He also alleges that “they state
the[y] can do as they please” and that “we are
being punished greatly because [we] were told we have no
rights in prison.” Id. The plaintiff says that
he is “filing on false imprisonment and cruel and
unusual punishment, ” id. at 2, and seeks
immediate release from prison and monetary damages for pain
and suffering, id. at 3.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that the defendant: 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 North Fond