United States District Court, E.D. Wisconsin
RYAN P. O'BOYLE, Plaintiff,
GEORGINA R. WETTENGEL, SGT. PIOJDA, DANIEL SLETTMANN, FRANCESCO MINEO, BONNIE GORDON, CYNTHIA DAVIS, and DENNIS FLYNN, Defendants.
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION
FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
(DKT. NO. 2) AND SCREENING PLAINTIFF'S COMPLAINT
PAMELA PEPPER United States District Judge
plaintiff, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983, alleging that
the defendants violated his civil rights during his arrest
and criminal prosecution in Milwaukee County. Dkt. No. 1. He
also has filed a motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 2). The court will
grant the motion to proceed without prepaying the filing fee
and screen the complaint. I. Motion for Leave to Proceed
without Prepayment of the Filing Fee The Prison
Litigation Reform Act applies to this case, because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915. That law allows a court to give an
incarcerated plaintiff the ability to proceed with his
lawsuit without prepaying the civil case filing fee, as long
as he meets certain conditions.
22, 2016, the plaintiff filed a motion for leave to proceed
without prepayment of the filing fee. Dkt. No. 2. On August
2, 2016, the court ordered the plaintiff to pay an initial
partial filing fee of $25.29. Dkt. No. 6. On August 15, 2016,
the court received a $350.00 payment from the plaintiff-the
full amount of the filing fee. The fact that he paid the
filing fee, however, does not moot the plaintiff's
motion. Prisoners who are not granted leave to proceed
without prepaying the filing fee also must pay a $50
administrative fee, and must serve their complaints
themselves. The plaintiff has disclosed that he has an
account containing $950; if the court did not grant his
request to proceed without prepaying the filing fee, he would
have to use some of that small amount of money to pay the $50
administrative fee and to hire someone to serve his
complaint. The court does not expect the plaintiff to deplete
all of his assets to file a lawsuit, especially when the
court finds that he has met the qualifications for proceeding
without paying the filing fee under 28 U.S.C. §1915. The
court will grant the plaintiff's motion, and note that he
has paid the entire applicable filing fee.
Screening the Plaintiff's Complaint
Standard for Screening Complaints
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 part or all of 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.
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead
specific facts, and his statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, a complaint
that offers “labels and conclusions” or
“formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on
its face.” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
considering whether a complaint states a claim, courts follow
the principles set forth in Twombly. First, they
must “identify pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. A plaintiff
must support legal conclusions with factual allegations.
Id. Second, if there are well-pleaded factual
allegations, courts must “assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that the defendants: 1) deprived him of
a right secured by the Constitution or laws of the United
States; and 2) acted under color of state law.
Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Vill. 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 is
obliged to give a pro se plaintiff's
allegations, “however inartfully pleaded, ” a
liberal construction. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Facts Alleged in the Complaint
October 2010, the plaintiff was attempting to change a flat
tire. Dkt. No. 1 at 2-3. Defendant Georgina R. Wattengel
approached the plaintiff, and the plaintiff told Wattengel
that her assistance was unnecessary. Id. at 3. The
plaintiff consistently indicated that he did not want to
speak to Wattengel or obtain assistance from her.
Id. She did not observe any “unusual conduct,
” but claims the plaintiff became uncooperative.
plaintiff alleges that Wattengel and defendant Sergeant
Piojda unlawfully seized him for Operating After Revocation
(OAR) and Obstructing an Officer/Fleeing; they transported
the plaintiff to the Oak Creek Police Department.
Id. at 2. The plaintiff says officers then
“coerced” him into submitting to a chemical test
of his breath that showed his blood alcohol content was above
the legal limit. Id. The plaintiff was arrested for
Operating While Intoxicated (OWI), and the other charges
against him soon were dismissed. Id.
plaintiff alleges that defendants Daniel Slettmann and
Francesco Mineo violated his rights by failing to provide a
fair and reliable determination of probable cause, and by
filing charges via a criminal complaint without an
objectively reasonable basis to determine probable cause.
Id. at 3-4. The plaintiff's theory is that the
District Attorney's office should have dismissed the OWI
charges once the OAR and obstruction/fleeing charges were
dismissed, because “the blood alcohol concentration was
the fruit of the unlawful seizure.” Id. at 4.
The plaintiff believes that all charges stemming from the
allegedly unlawful seizure should be dismissed. Id.
the plaintiff alleges that Milwaukee County Circuit Court
Judges Bonnie Gordon, Dennis Flynn and Cynthia Davis
“perpetuated the Fourth Amendment violation by allowing
this case to proceed to trial and a plea and sentencing
hearing when ...