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McGee v. Prey

United States District Court, E.D. Wisconsin

October 11, 2017




         The 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 his 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 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).

         On 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 decision.

         II. Screening the Plaintiff's Amended 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 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).

         To 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).

         To 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, 106 (1976)).

         A. The Plaintiff's Allegations

         The 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 at 1.

         He 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. Id.[1]

         Later 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.

         On 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 ...

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