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Pietila v. Co Sonntag

United States District Court, E.D. Wisconsin

March 5, 2018

MICHAEL SCOTT PIETILA, Plaintiff,
v.
CO SONNTAG, et al., Defendants.

          DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING AND DISMISSING THE COMPLAINT (DKT. NO. 1), AND DENYING MOTION TO APPOINT COUNSEL AS MOOT (DKT. NO. 11)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         This case currently is assigned to Magistrate 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 had 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. 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 case in federal court without pre-paying 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. Id.

         On December 1, 2017, Judge Duffin assessed an initial partial filing fee of $0.11. Dkt. No. 9. 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. 14. He states that he has not made any canteen purchases or otherwise spent his money. Id.

         Section 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.

         The court has reviewed the plaintiff's trust fund activity statement. Dkt. No. 8. Although he 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.

         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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