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Weeks v. Foster

United States District Court, E.D. Wisconsin

September 22, 2017

PATRICK WEEKS, Plaintiff,
v.
BRIAN FOSTER and CO COPELAND, Defendants.

          SCREENING ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE

         The plaintiff, who is incarcerated at Waupun Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on the plaintiff's petition for leave to proceed without prepaying the full filing fee.

         Weeks is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to proceed in forma pauperis. Weeks has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing fee of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $2.03. In a letter to the court, Weeks indicated that he has asked staff members at the institution to pay his initial partial filing fee from his release account, but has received no response. The court finds that Weeks lacks the funds to pay the partial filing fee. Therefore, the court waives the initial partial filing fee. 28 U.S.C. § 1915(b)(4).

         The court is required 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 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. 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).

         To 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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).

         Weeks alleges that, while he was in segregation, the defendants damaged his televison set when they transported it to the property department. As damages, he seeks the costs associated with repairing the television and with bringing this lawsuit. At most, Weeks' allegations advance a state law negligent claim. The negligent conduct on the part of a state official, however, is insufficient to state a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (finding that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property.”). This court has no jurisdiction over Weeks' state law claim. See 28 U.S.C. § 1332. Therefore, Week's state law claim will be dismissed. Although Weeks is foreclosed from pursuing this claim in federal court, Wisconsin law provides remedies to individuals whose property has been damaged by another. See Wis. Stat. §§ 893.35; 893.51.

         On September 15, 2017, Weeks filed a letter with the court indicating that, as a result of filing the instant lawsuit, he has been discriminated and retaliated against by prison staff. ECF No. 12. Weeks' concerns, however, are unrelated to the claim asserted in his complaint and do not arise out of the same transaction, occurrence, or series of transactions or occurrences as that claim. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). If Weeks believe he has grounds to assert a new claim, he may file a separate action.

         IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma pauperis (ECF No. 8) is GRANTED.

         IT IS FURTHER ORDERED that this action is DISMISSED without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a federal claim.

         IT IS ALSO ORDERED that the Clerk of Court document that this inmate has incurred a "strike" under 28 U.S.C. §1915(g).

         IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect from his institution trust account the $350.00 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, the transferring institution shall forward a copy of this Order along with plaintiff's remaining balance to the receiving institution.

         IT IS ALSO ORDERED that the Clerk of Court enter judgment accordingly.

         SO ...


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