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), SCREENING THE COMPLAINT (DKT. NO. 1) AND
DENYING THE PLAINTIFF'S MOTIONS TO APPOINT COUNSEL (DKT.
NOS. 5, 9)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
case currently is assigned to Judge William E. Duffin.
Although the plaintiff has consented to Judge Duffin 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
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 case 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, 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. 8. The plaintiff responded by
sending the court a letter, explaining that he cannot pay
this amount because the Department of Corrections takes all
of his money to pay for court ordered restitution. Dkt. No.
10. He states that he has not made any canteen purchases or
otherwise spent his money. Id.
1915(b)(4) states 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 has reviewed the plaintiff's trust fund activity
statement. Dkt. No. 7. Although the plaintiff has average
monthly deposits of $0.46, the plaintiff does not have access
to this money because the entire amount is automatically
withdrawn each month to pay for restitution, medical co-pay
and legal loans. See id. The court concludes that
the plaintiff has neither the assets nor the means to pay the
initial partial filing fee. The court will waive the initial
partial filing fee and will allow the plaintiff to proceed
without prepaying it.
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 is incarcerated at the Waupun Correctional
Institution (“WCI”). Dkt. No. 1. The defendants
are Correctional Officer Roper, Correctional Officer Hess,
Correctional Officer Gripentrog, Sergeant Moungey, Captain
Tritt, Correctional Officer Demers, Captain Westra, Angelia
Kroll and Warden Brian Foster. Id.
plaintiff alleges that on June 28, 2017, Roper used
“false allegations” to retaliate against the
plaintiff. Id. at 2. He says that Roper had
“made some unwanted passes” at the plaintiff, and
the plaintiff called the Prison Rape Elimination Act ...