United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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 must pay an initial partial filing fee. 28
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.
Motion to Supplement Claim
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.
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).
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.
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, 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.
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.
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 ...