United States District Court, E.D. Wisconsin
AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
DENYING THE PLAINTIFF'S MOTION AND SECOND MOTION TO
APPOINT COUNSEL (DKT. NOS. 5, 8) AND SCREENING THE COMPLAINT
(DKT. NO. 1)
PAMELA PEPPER United States District Judge.
case is assigned to Magistrate Judge William E. Duffin. The
plaintiff has consented to Judge Duffin's authority to
resolve the case, but because the defendants have not yet
been served, they have not had the opportunity consent. For
that reason, the case is before this court for the limited
purpose of screening the complaint and resolving pending
motions. The case will return to Judge Duffin after entry of
THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE
Prison Litigation Reform Act (“PLRA”) applies to
this case because the plaintiff was incarcerated when he
filed the complaint. 28 U.S.C. §1915. The PLRA allows an
incarcerated plaintiff to proceed with a lawsuit in federal
court without pre-paying the full civil case filing fee so
long as he pays an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial
filing fee, he can pay the balance of the $350 filing fee
over time, through deductions from his prisoner account.
December 1, 2017, Judge Duffin assessed an initial partial
filing fee of $0.11. Dkt. No. 7. The plaintiff then filed a
letter explaining that he could not pay this amount because
the Department of Corrections (“DOC”) takes all
of his money to pay for court ordered restitution. Dkt. No.
9. He told the court that he had not made any canteen
purchases or otherwise spent his money. Id.
1915(b)(4) provides that “[i]n no event shall a
prisoner be prohibited from bringing a civil action or
appealing a civil or criminal judgment for the reason that
the prisoner has no assets and no means by which to pay the
initial partial filing fee.” “Section 1915(b)(4)
comes into play only when ‘the prisoner has no assets
and no means by which to pay the initial partial filing
fee.'” Lindell v. McCaughtry, No.
01-C-209-C, 2004 WL 225074, at *1 (W.D. Wis. Jan. 23, 2004).
“A prisoner with periodic income has ‘means'
even when he lacks ‘assets.'” Id.
court reviewed the plaintiff's trust fund activity
statement. Dkt. No. 6. Although he has average monthly
deposits of $0.46, he does not have access to this money
because the entire amount is automatically withdrawn each
month to pay for restitution, a medical co-pay and legal
loans. Id. The court concludes that the plaintiff
has neither the assets nor the means to pay the initial
partial filing fee. It will waive the initial partial filing
fee and will allow the plaintiff to proceed without
prepayment of the fee.
SCREENING OF THE PLAINTIFF'S COMPLAINT
Standard for Screening Complaints
PLRA requires federal courts 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 may dismiss a case, or part of it,
if the claims alleged are “frivolous or malicious,
” fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. §1915(e)(2)(B).
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). The complaint need not plead specific
facts, and need only provide “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)).
“Labels and conclusions” or a “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).
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis in Twombly to
determine whether a complaint states a claim. Id. at
679. First, the court determines whether the plaintiff's
legal conclusions are supported by factual allegations.
Id. Legal conclusions not supported by facts
“are not entitled to the assumption of truth.”
Id. Second, the court determines whether the
well-pleaded factual allegations “plausibly give rise
to an entitlement to relief.” Id. The court
gives pro se 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)).
Facts Alleged ...