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Strong v. Wisconsin Department of Corrections

United States District Court, E.D. Wisconsin

March 22, 2018

DENNIS STRONG, Plaintiff,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS, AARON SABEL, ROGER NEVEAU, AND CHAD CORRIGAN, Defendants.

          SCREENING ORDER

          NANCY JOSEPH United States Magistrate Judge.

         Dennis 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.

         Not all 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.

         Motion to Proceed In Forma Pauperis

         The 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. Id.

         On July 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.

         Screening of Amended Complaint

         1. Standard for Screening Complaints

         The 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).

         To 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).

         The 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.

         Federal 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.

         To 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 (1976)).

         2. Facts Alleged in the ...


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