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Pietila v. Westra

United States District Court, E.D. Wisconsin

February 26, 2018

MICHAEL SCOTT PIETILA, Plaintiff,
v.
CAPTAIN WESTRA, et al., Defendants.

         DECISION 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)

          HON. PAMELA PEPPER United States District Judge.

         This 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 this order.

         I. THE PLAINTIFF'S 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 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. Id.

         On 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.

         Section 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.

         The 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.

         II. SCREENING OF THE PLAINTIFF'S COMPLAINT

         A. Standard for Screening Complaints

         The 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).

         To 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).

         The 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.

         Federal 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)).

         B. Facts Alleged ...


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