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Wells v. Phillips

United States District Court, E.D. Wisconsin

August 29, 2017

DIZZY WELLS, Plaintiff,
v.
BARRY PHILLIPS, et al., Defendants.

         DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PAYING THE FILING FEE (DKT. NO. 2), DENYING THE MOTION TO SUPPLEMENT CLAIM (DKT. No. 4), SCREENING THE PLAINTIFF'S COMPLAINT (DKT. NO. 1), AND REQUIRING PLAINTIFF TO FILE AN AMENDED COMPLAINT

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         The plaintiff, a state inmate 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 also filed a motion to supplement the claim in his complaint. Dkt. No. 4. This order resolves the motions and screens the 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 must pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On January 9, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $11.33. Dkt. No. 7. The plaintiff paid a partial fee of $11.30 on January 19, 2017; he has since paid an additional $13.53. 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. Motion to Supplement Claim

         The plaintiff filed a motion, indicating that he'd discovered that Court Commissioner Barry Phillips did not make a record of binding the defendant over for trial on the three counts in the state-court complaint. Dkt. No. 4 at 1-2. He argues that this failure deprived the Milwaukee County Circuit Court of jurisdiction over him, and he seeks to add this to his complaint. Id. at 2.

         Fed. R. Civ. P. 15(d) gives the court the authority to allow a party to serve a supplemental pleading “setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” (Emphasis added.) Here, the allegations in the plaintiff's supplement occurred before he filed his complaint, so the court will deny the plaintiff's motion because his proposed supplement does not satisfy the requirements of Fed.R.Civ.P. 15(d).

         Although the court is denying the plaintiff's motion on procedural grounds, it nonetheless addresses his request below, because the court is going to allow the plaintiff the opportunity to amend his complaint.

         III. 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, or part of it, 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).

         A claim 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 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.

         The plaintiff has sued various defendants, including police officers who arrested him, the victim of the crime for which he was convicted, a circuit court commissioner, district attorneys and the Milwaukee County Sheriff. The plaintiff claims that, after he was “illegally arrested, ” the court commissioner held a preliminary hearing on December 8, 2015, and “no probable cause was found on ‘any counts.'” Dkt. No. 1 at 2-3. The plaintiff alleges that, even ...


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