United States District Court, E.D. Wisconsin
DERRICK W. MOREHEAD, Plaintiff,
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.
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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
Motion for Leave to Proceed without Prepayment of the Filing
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).
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
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).
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,
The Plaintiff's Allegations
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.
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.
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 ...