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Zibolsky v. Department of Corrections

United States District Court, E.D. Wisconsin

October 26, 2017

JOHN WAYNE ZIBOLSKY, Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, SGT. JOHNSON, and EDWARD WILLIAMS, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO. 1)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         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. Under that law, the court must screen the plaintiff's complaint to determine whether the plaintiff states claims with which he may proceed. In addition to filing a complaint, the plaintiff filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. This decision will screen the complaint and resolve the plaintiff's motion.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         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 U.S.C. §1915(b).

         On September 5, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $1.13 by September 26, 2017. Dkt. No. 4. The plaintiff paid the fee on September 21, 2017. The court will grant the plaintiff's motion to proceed without prepayment of the filing fee. The court will order the plaintiff to pay the remainder of the filing fee over time in the manner explained at the end of this decision.

         II. Screening the Plaintiff's 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 alleges that, in the summer of 2016, he and defendant Edward Williams became cellmates at Oshkosh Correctional Institution. Dkt. No. 1 at 2. The plaintiff explains that Williams refused to let the plaintiff open the window, even when it was eighty degrees outside. Id. According to the plaintiff, when he tried to open the window, Williams would threaten to physically harm him. Id. The plaintiff asserts that at least four or five times, he informed defendant Sergeant Johnson about Williams' threats. Id. He states that Johnson told the plaintiff that he would be moved to another cell once one opened up. Id.

         The plaintiff states that, on October 22, 2016, he opened the window in his cell. Id. at 2. According to the plaintiff, Williams entered the cell shortly thereafter and shut the window. Id. The plaintiff asserts that Williams threatened him and then called him a “honkey.” Id. The plaintiff states that he called Williams a “nigger.” Id. Williams told the plaintiff to get off the bunk, but the plaintiff states that Williams punched him before he could get off. Id. According to the plaintiff, Williams pulled him off the bunk by his leg, which resulted in his head hitting the ground. Id. The plaintiff states that he suffered a laceration to his head that required five stitches, and three broken ribs, which lacerated his kidneys. Id.

         B. The Court's Analysis

         The plaintiff has named the Wisconsin Department of Corrections, Sgt. Johnson ...


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