United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Robert Phoneprasith, who is incarcerated at Dodge
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that Defendant
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $23.78. See 28
U.S.C. § 1915(b)(1).
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff 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)). However, a complaint that offers mere
“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). 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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “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. Section 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 deprivation was visited upon him by a person or
persons 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 is
obliged to give the plaintiff's 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)).
complaint presents claims regarding denial of visitation for
his child and inadequate law library access while he was
incarcerated in the Milwaukee County Jail. See
generally (Docket #1). Without addressing the merits of
the claims, two initial problems are apparent. First,
Plaintiff has named his daughter, A.P., as a co-plaintiff.
The Court has used her initials because it is not clear
whether she is a minor. Even if she were an adult, A.P. did
not sign the complaint, and thus cannot be a plaintiff in
this action. See Fed. R. Civ. P. 11(a). Second,
since the filing of his complaint, Plaintiff has offered
motions to amend or supplement his pleading. (Docket #8 and
#10). Piecemeal amendments to a pleading are not permitted;
Plaintiff's complaint must be contained in one complete
document. The motions will be denied.
Court will permit Plaintiff the opportunity to correct these
deficiencies in his pleading. If he chooses to offer an
amended complaint, Plaintiff must do so no later than
September 6, 2017. The amended complaint
supersedes the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the
Seventh Circuit emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading[.]”
Id. at 1057 (citation omitted); see also Pintado
v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007) (“As a general matter, ‘[a]n amended
pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a
part of the pleader's averments against his
adversary.'”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463
F.3d 1210, 1215 (11th Cir. 2006)). If an amended complaint is
received, it will be screened pursuant to 28 U.S.C. §
IT IS ORDERED that the plaintiff's
motion for leave to proceed without prepayment of the filing
fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IS FURTHER ORDERED that on or before
September 6, 2017, the plaintiff shall file
an amended pleading curing the defects in the original
complaint as described herein;
IS FURTHER ORDERED that Plaintiff's motions for
leave to amend the complaint (Docket #8 and #10) be and the
same are hereby DENIED;
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from his institution trust account
the balance of the filing fee by collecting monthly payments
from the plaintiff's prison trust account in an amount
equal to 20% of the preceding month's income credited to
the prisoner's trust account and forwarding payments to
the Clerk of Court each time the amount in the account
exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).
The payments shall be clearly identified by the case name and
number assigned to this action. If the plaintiff is
transferred to another institution, county, state, or
federal, the transferring institution shall forward a copy of
this Order along with plaintiff's remaining balance to
the receiving institution;
IS FURTHER ORDERED that a copy of this order be sent
to the officer in charge of the agency ...