United States District Court, E.D. Wisconsin
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.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Motion for Leave to Proceed without Prepayment of 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).
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.
Screening the Plaintiff's 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 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.
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.
The Court's Analysis
plaintiff has named the Wisconsin Department of Corrections,
Sgt. Johnson ...