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Daul v. Tomlin

United States District Court, E.D. Wisconsin

March 13, 2018

JESSE A. DAUL Plaintiff,
v.
KEITH TOMLIN, JIM SCHWOCHERT, WILLIAM POLLARD, MICHAEL BERNSTEIN, TAMMY DEVRIES, BUFFY GOSLINOWSKI, PATRICK SCHNEIDER, SALLY PEDERSON, BRIAN HAYES, JEREMY CAMPSHURE, JEFFREY WAGNER, JONATHAN ZEISSER, KEITH SELLEN, and JOHN DOES, Defendants.

          ORDER

          LYNN ADELMAN, United States District Judge

         Plaintiff Jesse Daul, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his civil rights. On February 28, 2018, plaintiff filed a motion seeking leave to file an amended complaint. Pursuant to Fed.R.Civ.P. 15, I will grant his motion. Plaintiff's proposed amended complaint (Docket No. 9-1) will be docketed as the operative complaint in this case.

         Plaintiff also filed a motion seeking leave to proceed with his case without prepayment of the filing fee. Plaintiff has also asked me to waive his obligation to pay an initial partial filing fee and to allow him to supplement his amended complaint. This order resolves plaintiff's motions and screens his amended complaint.

         Plaintiff's Motion to Proceed without Prepayment of the Filing Fee

          The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff was incarcerated at the time he filed his complaint. The PLRA gives courts discretion to allow plaintiffs to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that plaintiff pay an initial partial filing fee. On January 18, 2018, I ordered plaintiff to pay an initial partial filing fee of $0.96. Plaintiff asserts that he has neither the assets nor the means to pay the initial partial filing fee. Docket No. 8. He asks that I waive his obligation to pay the initial partial filing fee and that, instead, he be allowed to pay the entire filing fee over time. I will grant plaintiff's request. Plaintiff must pay the $350 filing fee over time in the manner I explain at the end of this decision.

         Screening of Plaintiff's Complaint

         Federal law requires that I screen complaints, including amended complaints, brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). I must dismiss a complaint or portion thereof if the prisoner has raised 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 proceed 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). I will give 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)).

         Plaintiff's Allegations

         Plaintiff alleges that, on September 10, 2015, he was sentenced by the Brown County Court to one year in the county jail, consecutive to a prison sentence. Docket No. 9-1 at 2. Plaintiff explains that good time credit reduced his sentence to nine months. Plaintiff was transferred to Dodge Correctional Institution, where his release date was initially left uncalculated. Plaintiff was then transferred to Oshkosh Correctional Institution, where plaintiff was instructed to write to the records supervisor to obtain a release date.

         Defendant A. Parenteau of the records department provided plaintiff with a release date, which plaintiff contended was incorrect. Plaintiff states that defendant Keith Tomlin relied on an “unlawful DAI/DCI policy and unlawful legal opinion” to support the release date computation. Id. Plaintiff alleges that, as a result of the improper release date, he was released after eight months (instead of nine) and the four months remaining on his one-year sentence was to be imposed only in the event his parole was revoked.

         Plaintiff states that, prior to being released from the initial eight months of confinement, he exhausted his administrative remedies in an effort to correct his release date and “prevent this unlawful parole.” Id. at 3. Upon release, plaintiff also notified his agent of the “unlawful parole.” Id. Upon revocation, plaintiff notified his defense attorney, the DHA law judge, the DHA administrator, and others of the “unlawful parole.” Id. Plaintiff also notified the sentencing court of the “unlawful parole.” Id. Everyone plaintiff contacted refused to correct the computation.

         In January 2018, plaintiff filed a petition for writ of habeas corpus, which is currently pending before me. See Case No. 18-cv-138 (E.D. Wis.). Plaintiff alleges that various defendants at his institution began to harass him by delaying legal ...


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