United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
plaintiff, an inmate at the Shawano County Jail, is
representing himself. He 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.
This order resolves the plaintiff's motion and screens
Motion for Leave to Proceed without Prepayment of the
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff is incarcerated. 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 pay an initial
partial filing fee. 28 U.S.C. §1915(b).
December 21, 2016, January 20, 2017, and March 10, 2017, the
court ordered the plaintiff to pay an initial partial filing
fee of $18.95. Dkt. No. 5, 9, 14. The plaintiff has not paid
the fee. After the court imposed the fee, however, the
plaintiff wrote to the court two letters, indicating that he
did not have the funds to pay even the initial partial filing
fee. Dkt. Nos. 15, 16. He indicated that if funds became
available in the future, he would pay then. Id. The
court is satisfied that the plaintiff cannot pay the initial
partial filing fee at this time. See Dkt. No. 15,
16; see also 28 U.S.C. §1915(b)(4). The court
will waive the initial partial filing fee, and will grant the
plaintiff's motion to proceed without prepayment of the
filing fee. The court will require the plaintiff to pay the
filing fee over time as set forth at the end of this
Screening the Plaintiff's Amended 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 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).
state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
proceed under 42 U.S.C. §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
defendant was 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 gives a pro se plaintiff's 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,
The Plaintiff's Allegations
plaintiff is suing Shawano County Judge James Habeck, Shawano
County Detective Nick Prey, Shawano County District Attorney
Catharine White, and Public Defender Steven Weetz. Dkt. No. 1
alleges that on August 8, 2016, Judge Habeck signed warrants
from “affidavit CI” (presumably, a confidential
informant) allowing Detective Prey to track the plaintiff by
GPS, undercover vehicles and phone conversations.
Id. at 2. On August 11, 2016, detectives arranged a
traffic stop in Shawano County. Id. The plaintiff
was a passenger in the car and, when asked for his
identification, gave his brother's name. Id.
Detectives and a dog searched the vehicle for over two hours
and didn't find any drugs. Id. District Attorney
White charged the plaintiff with identity theft and
possession of a rolled-up dollar bill.
in the day on August 11, 2016, the plaintiff was told he
qualified for a public defender, and he had a brief
consultation with Attorney Weetz. Id. at 3. The
plaintiff asked Attorney Weetz to file for a speedy trial,
but Weetz did not do so. Id. The plaintiff alleges
that Attorney Weetz switched the judge on the plaintiff's
case to Judge Habeck, then dropped the plaintiff as a client,
alleging a “conflict of entrance.” Id.
At the time, the plaintiff didn't know that Judge Habeck
had signed off on the initial investigation of the plaintiff.
Id. The plaintiff hasn't been able to get his
bail reduced, and he alleges that District Attorney White,
with Judge Habeck's approval, used the plaintiff's
juvenile offense in court because the plaintiff doesn't
have an adult record to support his bail amount. Id.
August 16, 2016, Detective Prey took the plaintiff's cell
phone from his property at the Shawano County Jail.
Id. On August 24, 2016, the plaintiff complained to
county officials about the phone. Id. On August 28,
2016, the plaintiff was given a search warrant, signed by
Judge Habeck, that authorized Detective Prey to take the
plaintiff's phone ...