United States District Court, E.D. Wisconsin
ELLIOTT G. KYLES, Plaintiff,
BEAU CHARNEY, SILVA ESCALANTE, and JEREMY NELSON, Defendants.
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)
PAMELA PEPPER, United States District Judge
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.
Motion for Leave to Proceed without Prepayment of 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.
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.
Screening the Plaintiff's Complaint
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.
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. 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,
The Plaintiff's Allegations
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.
The Court's Analysis
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 ...