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Anderson v. Malone

United States District Court, E.D. Wisconsin

March 23, 2018

TERRY L. ANDERSON, Plaintiff,
v.
WARDEN MALONE, JOHN DOE, BRUCE E., CO WEISE, CO PEKENOW, SGT ROBINSON, and CAPTAIN BRICK, Defendants.

         DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING PLAINTIFF'S COMPLAINT, ALLOWING PLAINTIFF TO FILE AMENDED COMPLAINT, DENYING WITHOUT PREJUDICE PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL (DKT. NO. 1 AT P. 4) AND DENYING PLAINTIFF'S MOTION TO HAVE HIS SOCIAL WORKER SEND HIS PROPERTY TO HIM (DKT. NO. 7)

          HON. PAMELA PEPPER United States District Judge.

         On April 5, 2017, the plaintiff filed a complaint under §1983, alleging that the defendants were violating his constitutional rights. Dkt. No. 1. He also filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. On April 19, 2017, the plaintiff filed a motion asking the court to order his social worker to mail his legal documents to him. Dkt. No. 7. This decision resolves the plaintiff's motions and screens his complaint.

         I. 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 his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On April 18, 2017, the court decided that the plaintiff lacked sufficient funds to pay an initial partial filing fee, so it waived that requirement. Dkt. No. 6. The court will grant the plaintiff's motion to proceed without prepayment of the filing fee, and will require him to pay the entire $350 filing fee over time as explained at the end of this decision.

         II. Screening the Plaintiff's Complaint

         The law requires the court 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 must dismiss a complaint if the plaintiff raises claims that are legally “frivolous, malicious, or 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 state a claim 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. Cty of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives 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)).

         A. The Plaintiff's Allegations

         The plaintiff alleges that “every time [he does] legal work or get[s] on a religious diet prison staff retaliate against [him] with psychological warfare mindgames headgames chaos confusion.” Dkt. No. 1 at 2. The plaintiff states that he is under attack from the warden, guards, unit managers and even nurses. Id. at 3. He states that they are attacking him with mindgames, spiritual warfare and evil spirits. Id. He alleges that these attacks occur, not just when he does legal work or gets on a religious diet, but when he practices religion and politics and “African American studies.” Id. at 2.

         The plaintiff also alleges that when he is “short something on [his] special diet, ” he has observed officers going into the control center and coming back with items that only he gets; in other words, he alleges that officers are holding his food in the control center and not giving him anything to replace it. Id. at 3. He also alleges that his life is in danger, that his food is tampered with and that someone is spitting in it. Id.

         B. The ...


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