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Morehead v. Milwaukee County Police Department

United States District Court, E.D. Wisconsin

March 5, 2018

DERRICK W. MOREHEAD, Plaintiff,
v.
MILWAUKEE COUNTY POLICE DEPARTMENT, and MR. BOAZ, Defendants.

          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. 1)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         This case currently is assigned to Magistrate Judge Nancy Joseph. Although the plaintiff has consented to Judge Joseph hearing and deciding the case, the defendants have not yet had the opportunity to decide whether to consent, because until now, the court has not screened the complaint and decided whether it should be served on the defendants. Because both parties have not yet consented to the magistrate judge hearing the case, the district court judge will screen the complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         In addition to filing a complaint, the plaintiff filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. 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 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 pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On October 20, 2017, Judge Joseph ordered the plaintiff to pay an initial partial filing fee of $16.00 by November 13, 2017. Dkt. No. 6. The plaintiff paid the fee on November 2, 2017. Accordingly, 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.

         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 state a claim 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 August 27, 2017, Milwaukee Police Department officers detained him. Dkt. No. 1 at 2. The plaintiff states that, after sitting in the back of several squad cars for a long time, officers took him to District #1. Id. Defendant Boaz was the booking officer. Id.

         The plaintiff explains that Boaz took his fingerprints, and collected all of his personal property-credit cards, bus passes, cash, shoe strings. Id. The plaintiff states that he was searched more than four times (the court assumes Boaz performed all of the searches, but the complaint is not clear on this point). Id.

         At one point, Boaz allegedly told the plaintiff that he smelled like marijuana, and instructed him to stand up. Id. The plaintiff states that he spread his legs and put his hands up to facilitate Boaz's search. Id. He alleges that, while Boaz was searching him, Boaz gripped and pulled his penis and testicles. Id. The plaintiff states that he quickly jumped away and alerted the arresting officer to Boaz's actions. Id. The plaintiff asserts that the only response was that a different officer took ...


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