United States District Court, E.D. Wisconsin
JOSEPH United States Magistrate Judge.
Strong, who is confined at the Outagamie County Jail, is
representing himself in this civil rights action under 42
U.S.C. § 1983. Strong alleges that his ongoing
confinement on a probation violation charge violates his
Fourteenth Amendment due process rights. This matter is
before me on Strong's motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) and
for screening of his amended complaint.
parties have had the opportunity to fully consent to
magistrate judge jurisdiction under 28 U.S.C. § 636(c).
Nonetheless, I have jurisdiction to screen the complaint
pursuant to the Wisconsin Department of Justice's limited
consent to the exercise of magistrate judge jurisdiction as
set forth in the Memorandum of Understanding between the
Wisconsin Department of Justice and this Court.
to Proceed In Forma Pauperis
Prison Litigation Reform Act applies to this case because
Strong is incarcerated. 28 U.S.C. § 1915. The law allows
a court to give an incarcerated plaintiff the ability to
proceed with his lawsuit without pre-paying the civil
case-filing fee, as long as he meets certain conditions.
Id. One of those conditions is a requirement that
Strong pay an initial partial filing fee. 28 U.S.C. §
1915(b). Once he pays the initial partial filing fee, I may
allow Strong to pay the balance of the $350 filing fee over
time, through deductions from his prisoner account.
18, 2017, I issued an order finding that Strong lacked the
funds to pay an initial partial filing fee, and waiving that
fee. (Docket # 5); 28 U.S.C. § 1915(b)(4). The July 18,
2017 order also permitted Strong an opportunity to
voluntarily dismiss this action, to avoid incurring a
“strike” for filing a frivolous or unfounded
lawsuit. (Docket # 5.) Strong did not move to voluntarily
dismiss this action. On August 22, 2017, I screened
Strong's original complaint, concluding that he could not
proceed on his original complaint but permitting him an
opportunity to file an amended complaint. (Docket # 9). The
August 22, 2017 screening order also held Strong's motion
to proceed without prepayment of the filing fee in abeyance
pending Strong filing an amended complaint, and provided him
a second opportunity to voluntarily dismiss this action.
(Id.) On September 25, 2017, Strong filed an amended
complaint, affirming his desire to proceed with this action.
(Docket # 10.) I will grant Strong's motion for leave to
proceed without prepayment of the filling fee and will allow
him to pay the $350 filing fee over time from his prisoner
account, as described at the end of this order.
of Amended Complaint
Standard for Screening Complaints
Prison Litigation Reform Act 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). A court may
dismiss an action, or portion thereof, 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, a
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 a complaint must allow a court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Indeed, 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 set forth in Twombly to
determine whether a complaint states a claim. Id. at
679. First, a 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, a court determines whether the
well-pleaded factual allegations “plausibly give rise
to an entitlement to relief.” Id.
state a claim for relief 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 deprivation was visited upon him by a person or
persons 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). A court
gives pro se allegations, “however inartfully pleaded,
” a liberal construction. See Erickson, 551 U.S. at 94
(quoting Estelle v. Gamble, 429 U.S. 97, 106
Facts Alleged in the ...