United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE 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 David E.
Jones. Although the plaintiff has consented to Judge Jones
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.
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 prepaying the full civil case filing fee, as
long as he pays an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial
filing fee, the plaintiff can pay the balance of the $350
filing fee over time, through deductions from his prisoner
October 13, 2017, Judge Jones assessed an initial partial
filing fee of $35.76. Dkt. No. 5. The plaintiff paid that
amount on October 30, 2017. Therefore, the court will grant
the plaintiff's motion for leave to proceed without
prepayment of the filling fee and will allow the plaintiff to
pay the balance of the $350.00 filing fee over time from his
prisoner account, as described at the end of this order.
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 in the Complaint
plaintiff has sued Sheriff Schmaling, Chief Deputy Hanrahan,
Lt. Chavez, Lt. Friend, and corrections officers Johnson,
Noble, Ervin, Tapa and Kosterman. Dkt. No. 1 at 1.
28, 2017, around 3:25 p.m., the plaintiff had a psychological
breakdown (he describes it as a “blackout”) and
used his toilet to flood his cell. Id. at 3.
Correctional Officers Kosterman, Tapa and Ervin came to the