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Kyles v. Charney

United States District Court, E.D. Wisconsin

February 2, 2018

ELLIOTT G. KYLES, Plaintiff,
v.
BEAU CHARNEY, SILVA ESCALANTE, and JEREMY NELSON, Defendants.

         DECISION AND ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME TO PAY THE INITIAL PARTIAL FILING FEE (DKT. NO. 7), GRANTING THE 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 plaintiff, who was incarcerated at the Brown County Jail when he filed his complaint, is representing himself. He filed a complaint alleging that the defendants violated his constitutional rights by illegally strip-searching him. Dkt. No. 1. He also filed a motion asking the court to allow him to proceed without prepaying the filing fee. Dkt. No. 2. This order resolves the motion for leave to proceed without prepayment of the filing fee, and screens the 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 was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA authorizes a court to allow an incarcerated plaintiff 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 August 10, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $2.77 by August 31, 2017. Dkt. No. 4. On August 21, 2017, the court received a motion from the plaintiff, asking for additional time to pay the fee. Dkt. No. 7. The court received the initial partial filing fee on August 28, 2017, three days before the original deadline, so no extension of the deadline was necessary. The court will deny as moot the plaintiff's motion for an extension of time, and will grant his 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 PLRA 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. C'nty of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. 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 on December 22, 2015, Beau Charney illegally strip-searched him while he was detained. Dkt. No. 1 at 3. He alleges that, on the same date, while he was detained at the Brown County Jail, Silva Escalante strip-searched him. Id. at 5. Finally, he alleges that on the same date, while he was being detained but before he'd been booked into the jail, Jeremy Nelson strip-searched him. Id. 6. The plaintiff alleges that these searches were unlawful, because they violated his rights under the Fourth Amendment, and because no one provided him with the information required by Wis.Stat. §968.225 prior to the search. Id. at 3-6. He asks for money damages. Id. at 7.

         B. The Court's Analysis

         The plaintiff's complaint is missing some information that the court needs in order to determine whether he states a claim that a federal court can consider. It appears that the plaintiff was a pretrial detainee at the time the alleged searches took place-in other words, that he wasn't in the Brown County Jail because he'd been convicted of a crime, but because he had been arrested and was waiting to be charged or to go to court. If this is true, then the plaintiff may have grounds to state a claim under the Fourth Amendment of the U.S. Constitution. “Pretrial detainees retain their constitutional rights, including the protections of the Fourth Amendment against unreasonable searches and seizures.” Young v. County of Cook, 616 F.Supp.2d 834, 845 (N.D. Ill. April 2, 2009) (citing ...


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